Safarian v. Shaham CA2/5 ( 2014 )

Filed 10/9/14 Safarian v. Shaham CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ROSE SAFARIAN et al, B244709
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC387615)
v.
ELSAGAV S. SHAHAM, M.D.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ernest
Hiroshige, Judge. Affirmed.
Elsagav Shaham, M.D., in pro. per.; The Maloney Firm, Patrick M. Maloney;
Klapach & Klapach and Joseph S. Klapach for Defendant and Appellant.
Law Offices of Armen M. Tashjian, Armen M. Tashjian for Plaintiffs and
Respondents Rose Safarian and Armen Sanamyan.
INTRODUCTION
A jury found that defendant and appellant Elsagav Shaham, M.D. (Shaham) and
defendants Harry Govgassian (Govgassian), Alisa Agadjanian (Agadjanian), and Silka
Enterprises Inc., doing business as Salud Family Medical Clinic (Silka/Salud) conspired
to defraud plaintiffs and respondents Rose Safarian (Safarian) and her husband Armen
Sanamyan (Sanamyan) (plaintiffs) in connection with plaintiffs’ investment in a medical
clinic. The jury awarded plaintiffs compensatory and punitive damages. On appeal,
Shaham1 contends that the trial court improperly and prejudicially instructed the jury on
conspiracy to commit fraud because plaintiffs’ second amended complaint did not allege
that he participated in a conspiracy to commit fraud, the evidence did not support such an
instruction, and the instruction misstated the law; sufficient evidence did not support his
inclusion on the conspiracy to commit fraud special verdict form; the trial court
erroneously admitted evidence; Govgassian’s, Agadjanian’s, and plaintiffs’ perjured
testimony denied him a fair trial and caused him to suffer an excessive damages award;
his counsel’s joint representation of Govgassian and Agadjanian despite a conflict denied
him a fair trial; and the trial court erred when it denied his new trial motion on the
grounds that he did not timely file his notice of intention to file a new trial motion and his
new trial motion. We affirm.
1 Govgassian and Agadjanian filed notices of appeal separate from Shaham. Their
appeals were dismissed. This opinion concerns only Shaham’s appeal.
2
BACKGROUND2
Plaintiffs alleged in their second amended complaint that Shaham was the sole
stock owner in Silka/Salud, a medical clinic located on Santa Monica Boulevard in Los
Angeles. Govgassian owned, and he and Agadjanian were the managers and executives
of, defendant Hippocratic Management Services, Inc. (Hippocratic).3 Govgassian was
Safarian’s trusted long-time family friend. On April 18, 2007, plaintiffs finalized a
verbal agreement to enter a joint venture or partnership with Govgassian and Agadjanian
for the purchase of a one-third interest in Silka/Salud for $150,000.
Under the terms of the verbal agreement, plaintiffs alleged, Shaham would retain a
one-third interest in Silka/Salud and Govgassian and Agadjanian would receive a one-
third interest. The agreement also provided that plaintiffs would have full operational
and executive management control of the medical clinic; the clinic would employ
Safarian as a Comprehensive Perinatal Services Consultant (CPSC) and a nutritional
consultant; defendants would work diligently to obtain “all proper licensing and permits,”
including obtaining a “provider number” and an accreditation to do business with
Medicare and Medicaid, to enable the clinic to open; “[d]efendants, having represented to
the plaintiffs that the subject corporation was/is well capitalized, will be able to meet all
of its obligations and liabilities while defendants are in a process of obtaining” all proper
licensing and permits; defendants would market the clinic; and defendants would not act
against the clinic’s financial interests.
2 Shaham opening brief does not include an adequate statement of the facts. (Cal.
Rules of Court, rule 8.204(a)(2)(c) (2) [“An appellant’s opening brief must: [¶]—[¶]
Provide a summary of the significant facts limited to matters in the record”].) Plaintiffs’
brief also does not contain an adequate statement of facts. We summarize here the
relevant allegations in plaintiffs’ second amended complaint and set forth some of the
procedural background to place Shaham’s contentions on appeal in context. As
necessary, we set forth additional facts in our discussion below of Shaham’s contentions
on appeal.
3 The trial court struck Hippocratic’s answer and entered its default.
3
Plaintiffs alleged that Govgassian and Agadjanian falsely stated to them that
“Silka/Salud was a well-financed corporation with a successful track record and
imminent profits from ventures in the health care industry” in order to induce them to
purchase the interest in Silka/Salud. With Shaham’s “full authority, knowledge and
consent,” Govgassian and Agadjanian also made the following false and misleading
statements to plaintiffs:4 plaintiffs would be issued one-third of Silka/Salud’s common
stock, the fair market value of which was $150,000; as one-third owners of Silka/Salud,
plaintiffs would receive substantial income once Silka/Salud obtained a “provider
number” to bill Medicare and Medicaid for services rendered to its patients; Silka/Salud
would employ Safarian as an administrator, and she would participate in profit sharing;
plaintiffs would be kept well informed of the progress of the accreditation process;
plaintiffs would be allowed to “inspect [the] books” and would be “provide[d] accounting
without restrictions”; plaintiffs would receive their share of the profits at least on a
quarterly basis; and plaintiffs would have unrestricted access to Silka/Salud’s records
without “special notice requirements.” Plaintiffs relied on the false and misleading
statements in investing in Silka/Salud.
According to plaintiffs, subsequent to their initial investment in Silka/Salud, they
were “forced” to lend Silka/Salud $95,000 due to its “severe undercapitalization.” To
raise the $95,000, plaintiffs had to deplete their savings and borrow against their credit
cards. Defendants breached the agreement in a number of ways, ran the clinic in an
illegal manner, and fired Safarian when she complained about illegal billing without ever
having paid her wages.
In their second amended complaint, plaintiffs asserted against Shaham,
Govgassian, Agadjanian, Silka/Salud, and Hippocratic causes of action for unlawful sale
of securities, constructive fraud, breach of contract, breach of fiduciary duty, conversion,
accounting, declaratory relief, and unlawful business practices in violation of Business
and Professions Code section 17200. Plaintiffs alleged in their fraud cause of action—the
4 The trial court found that Shaham did not personally make a false representation to
plaintiffs.
4
only cause of action ultimately presented to the jury—that Govgassian and Agadjanian
made false promises and representations to them about Silka/Salud’s current financial
viability and future financial prospects thereby inducing them to purchase a one-third
interest in the medical clinic. They alleged that Shaham, as the sole owner and operator
of Silka/Salud, “was well aware of the promises made to plaintiffs” and “knowingly and
voluntarily accepted the benefits of the transaction.” Plaintiffs alleged that they suffered
damages as a result of the false representations. Plaintiffs also asserted against
Govgassian a cause of action for intentional infliction of emotional distress. In addition
to compensatory damages and other relief, plaintiffs sought punitive damages.
After the presentation of plaintiffs’ evidence, Shaham, Govgassian, and
Agadjanian apparently moved for nonsuit as to all causes of action in the second
amended complaint.5 Before the trial court ruled on the motion, plaintiffs stated that they
were willing to proceed only on their causes of action for fraud, conversion, and
intentional infliction of emotional distress. Thereafter, the trial court granted nonsuit as
to plaintiffs’ conversion and intentional infliction of emotional distress causes of action,
and denied nonsuit as to plaintiffs’ fraud cause of action, which cause of action the trial
court permitted plaintiffs to argue to the jury on a conspiracy to commit fraud theory of
liability.
On the special verdict form on conspiracy to commit fraud, the jury found that a
defendant made a false representation to a plaintiff that the defendant knew was false or
made the representation recklessly and without regard for its truth. It further found that
the following four representations were false: 1. “Per Harry Govgassian and/or Alisa
Agadjanian defendant corporations were well-financed with successful track record and
imminent profits from ventures in the health care industry, and were able to meet all of
their financial obligations and liabilities while defendants were in the process of
obtaining licensing and provider number”; 2. “Per Harry Govgassian and/or Alisa
Agadjanian Plaintiffs for investing $150,000.00 would own one-third interest of medical
5 Shaham did not designate the motion for nonsuit as part of the record on appeal.
5
clinic called Silka Enterprises, Inc., d/b/a Salud Family Medical Clinic”; 3. “Per Harry
Govgassian and/or Alisa Agadjanian Plaintiff Rose Safarian would be paid $25.00 per
hour as the on-site manager and CPS[C] consultant”; and 4. “Prior to investing the
Plaintiffs were promised by Harry Govgassian and/or Alisa Agadjanian that they would
safeguard their investment and will give them detailed accounting and documentation of
how their investment was being utilized.” The jury found that plaintiffs “reasonably
relied on the representation” and that reliance on the false representation was a
substantial factor in causing harm to plaintiffs. It found that Shaham, Govgassian,
Agadjanian, and “Silka Enterprises/Hippocratic” conspired to defraud plaintiffs. The jury
awarded plaintiffs compensatory damages of $460,000 against Shaham, Govgassian,
Agadjanian, and Silka/Salud; and punitive damages of $100,000 against Shaham,
$250,000 against Govgassian, $125,000 against Agadjanian, and $25,000 against
Silka/Salud.
DISCUSSION
I. Conspiracy to Commit Fraud
Shaham contends that the jury was improperly instructed on conspiracy to commit
fraud as to him because the second amended complaint did not allege that he participated
in the formation and operation of a conspiracy to commit fraud; CACI No. 3600, the
instruction on conspiracy to commit fraud, misstated the law because it failed to state that
a defendant had to intend to aid in the commission of the wrongdoing to be a
coconspirator; he was prejudiced by the conspiracy to commit fraud instruction because
the evidence did not show that he participated in the formation and operation of a
conspiracy to commit fraud; and the special verdict form on conspiracy to commit fraud
allowed the jury to find him liable when the evidence did not show that he participated in
a conspiracy to commit fraud. The trial court did not err in instructing the jury on
conspiracy to commit fraud or in giving the jury the special verdict form on conspiracy to
commit fraud and there was sufficient evidence to support the instruction and verdict.
6
A. Conspiracy to Commit Fraud Allegations in the Second Amended
Complaint
Shaham contends that the trial court erred in instructing the jury with CACI No.
3600 on conspiracy to commit fraud as to him because the second amended complaint did
not allege that he participated in the formation and operation of a conspiracy to commit
fraud. The second amended complaint sufficiently alleged that Shaham participated in a
conspiracy to commit fraud.
“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on
persons who, although not actually committing a tort themselves, share with the
immediate tortfeasors a common plan or design in its perpetration. [Citation.] By
participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the
torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a
coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied
Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 510-511.)
“The elements of an action for civil conspiracy are (1) formation and operation of
the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in
furtherance of the common design. (Doctors’ Co. v. Superior Court (1989) 49 Cal. 3d 39,
44.)” (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1062.) A plaintiff need not allege in
detail the acts that constitute the conspiracy. (Greenwood v. Mooradian (1955) 137
Cal. App. 2d 532, 537-538.) “[B]ecause of the inherent difficulty in proving a conspiracy,
it has been held that a conspiracy may sometimes be inferred from the nature of the acts
done, the relations of the parties, the interests of the alleged conspirators, and other
circumstances.” (Id. at p. 538.)
Plaintiffs in the fraud cause of action6 against all of the defendants in the second
amended complaint alleged that Govgassian and Agadjanian made false promises and
representations to plaintiffs about Silka/Salud’s current financial viability and future
financial prospects thereby inducing them to purchase a one-third interest in the medical
6 In the heading, plaintiffs allege “constructive fraud.” The allegations, however,
determine whether a cause of action is stated.
7
clinic. Plaintiffs alleged that Shaham, as the sole owner and operator of Silka/Salud,
“was well aware of the promises made to plaintiffs” and “knowingly and voluntarily
accepted the benefits of the transaction.” Plaintiffs suffered damages as a result of the
false representations. In addition, plaintiffs alleged that each defendant acted as an agent
for each other and approved and ratified the acts of each of the other defendants.
Although the fraud cause of action does not use the word “conspiracy” in its allegations,
by inference it alleged sufficiently each of the elements of a conspiracy to commit fraud.
(Rusheen v. Cohen, supra, 37 Cal.4th at p. 1062; see also Farr v. Bramblett (1955) 132
Cal. App. 2d 36, 47 [do not have to use word “conspiracy” in allegations to state a cause of
action for conspiracy]7, disapproved on another ground in Field Research Corp. v.
Superior Court (1969) 71 Cal. 2d 110, 114, fn. 4.)
B. The Conspiracy to Commit Fraud Instruction (CACI No. 3600)
Shaham claims that the trial court erred in instructing the jury with CACI No.
3600 on conspiracy to commit fraud because the instruction misstated the law by failing
to inform the jury that a defendant had to intend to aid in the commission of the
wrongdoing to be a coconspirator. The trial court properly instructed the jury on
conspiracy to commit fraud. We review de novo a claim that a jury instruction does not
correctly state the law. (People v. Posey (2004) 32 Cal. 4th 193, 218.)
The trial court instructed the jury with a modified version of CACI No. 3600 as
follows:
“Plaintiffs claim that they were harmed by a fraud and that Harry Govgassian,
Alisa Agadjanian, Elsagav Shaham, M.D. and SILKA ENTERPRISES INC. are
responsible for the harm because they were part of a conspiracy to commit fraud. A
conspiracy is an agreement by two or more persons to commit a wrongful act. Such an
agreement may be made orally or in writing or may be implied by the conduct of the
parties. All members of a conspiracy are referred [to] as ‘co-conspirators’.
7 Shaham acknowledged prior to trial that plaintiffs’ action against him sought to
hold him personally liable for the acts of Govgassian and Agadjanian.
8
“If you find that any co-conspirator committed a fraud that harmed Rose Safarian
and Armen Sanamyan, then you must determine whether other defendants are also
responsible for the harm. A defendant is responsible if Rose Safarian and Armen
Sanamyan prove both of the following:
“1. That the defendant was aware that at least one co-conspirator planned to
commit fraud; and
“2. That the defendant agreed with and intended that the co-conspirator commit
the fraud.
“Mere knowledge of a wrongful act without cooperation or an agreement to
cooperate is insufficient to make a defendant responsible for the harm.
“A conspiracy may be inferred from circumstances, including the nature of the
acts done, the relationships between the parties, and the interests of the alleged co-
conspirators. Rose Safarian and Armen Sanamyan are not required to prove that each
defendant personally committed a wrongful act or that each defendant knew all the
details of the agreement or the identities of all the other participants.”
Citing Kidron v. Movie Acquisition Corp. (1995) 40 Cal. App. 4th 1571, 1583,
Shaham argues that CACI No. 3600’s requirement that plaintiff prove “[t]hat the
defendant agreed with and intended that the co-conspirator commit fraud” misstated the
law because the law requires that a “co-conspirator intend to aid in the commission of the
wrongdoing, which is more active than the passive requirement of intend for it to be
committed.” 8 CACI No. 3600 does not misstate the law. To be liable for a civil
conspiracy, a defendant does not personally have to commit the tort that is the object of
the conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th
at p. 510.) Instead, a defendant is liable as coconspirator because he shares with those
committing the tort a common plan or design in the tort’s perpetration. (Id. at pp. 510-
8 It appears that Shaham intended to cite to page 1582 rather than page 1583 of
Kidron v. Movie Acquisition Corp. where the court held that “actual knowledge of the
planned tort, without more, is insufficient to serve as the basis for a conspiracy claim.
Knowledge of the planned tort must be combined with intent to aid in its commission.”
9
511.) Accordingly, because a defendant does not have to commit the tort personally to be
liable as a coconspirator, he does not have to intend to aid in its commission. Rather,
because a defendant is liable by sharing with the actual tortfeasors a common plan or
design in the tort’s perpetration, the defendant need only “intend[] that the co-conspirator
commit fraud.” (CACI No. 3600.) Moreover, CACI No. 3600 specifically informed the
jury that Shaham’s knowledge of the conspiracy alone was insufficient to find him liable
as a coconspirator.
C. Sufficiency of the Evidence in Support of CACI No. 3600 and the Special
Verdict Form on Conspiracy to Commit Fraud
Shaham contends that the trial court prejudicially instructed the jury with CACI
No. 3600 on conspiracy to commit fraud when the evidence did not show that he
participated in the formation and operation of a conspiracy to commit fraud. He further
contends that because the evidence did not show that he participated in a conspiracy to
commit fraud, the trial court erred in giving the jury the special verdict form on
conspiracy to commit fraud. We asked the parties to submit supplemental briefs
addressing whether Shaham forfeited these contentions by failing to summarize the facts
in support of the judgment fully and fairly. (See Foreman & Clark Corp. v. Fallon
(1971) 3 Cal. 3d 875, 881 [judgment]; Doe v. Roman Catholic Archbishop of Cashel &
Emly (2009) 177 Cal. App. 4th 209, 218 [jurisdictional finding]; First American Title Co.
v. Mirzaian (2003) 108 Cal. App. 4th 956, 958, fn. 1 [“A party proceeding in propria
persona ‘is to be treated like any other party and is entitled to the same, but no greater
consideration than other litigants and attorneys.’ [Citation.]”].) Regardless of any such
forfeiture, we directed plaintiffs to specify the evidence they claim shows that Shaham
participated in a conspiracy to defraud them, and directed Shaham to analyze the
evidence to show he did not participate in such a conspiracy.
Despite Shaham’s initial failure to set forth the facts properly, we have reviewed
the record (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal. App. 4th 735, 739 [the
burden to provide a fair summary of the evidence “grows with the complexity of the
10
record”]) and conclude that sufficient evidence supports the instructions on conspiracy to
commit fraud and the jury’s finding that Shaham conspired to defraud plaintiffs.
Proving a conspiracy is inherently difficult. (Greenwood v. Mooradian, supra,
137 Cal.App.2d at p. 538.) Here, because Shaham did not personally make a false
representation to plaintiffs, plaintiffs’ task of proving his involvement in a conspiracy to
defraud them was more difficult. Plaintiffs had to prove that Shaham conspired to
defraud them by inference “from the nature of the acts done, the relations of the parties,
the interests of the alleged conspirators, and other circumstances.” (Ibid.)
Shaham testified that he met Govgassian and Agadjanian in 1998 or 1999 when he
was hired as an obstetrician at the Salud Clinic on Sunset Boulevard. “Salud” was the
business name of Silka Enterprises, Inc. In 2001, when the other physicians left the
clinic, Govgassian and Agadjanian approached Shaham about acquiring the clinic.
Shaham either paid $1 for the clinic or Govgassian gave him the clinic. Shaham changed
Silka Enterprises, Inc. from a “regular” corporation into a medical corporation. Shaham
owned 100 percent of Silka Enterprises, Inc. Shaham made all the decisions “as far as
the corporation [was] concerned.” Govgassian managed the clinic for Shaham.
Agadjanian was the office manager.
In about 2007, Govgassian told Shaham that he, Govgassian, was going to open a
second clinic on Santa Monica Boulevard. Shaham testified that he did not want
anything to do with the second clinic and that he told Govgassian not to use Silka
Enterprises, Inc. funds in opening the second clinic. Asked if Govgassian opened the
clinic despite Shaham’s opposition, Shaham responded, “If he wants to set up a business
and be a manager there. It’s his business, who am I to stop him.”
Safarian testified that she and Sanamyan had numerous discussions with
Govgassian, a long-time family friend, and Agadjanian about investing in the Santa
Monica clinic. Shaham was not physically present for those discussions, but if Safarian
or Sanamyan had any questions, Govgassian would call Shaham on a speaker phone and
Shaham would answer their questions. Of the money plaintiffs invested in the Santa
Monica clinic, Safarian wrote checks totaling $37,400 to Silka, at least one of which
11
checks Safarian personally deposited in Silka’s account. Other deposits were made to
Hippocratic’s account.
Safarian testified that Shaham visited the Santa Monica clinic during construction
and Govgassian introduced plaintiffs to Shaham saying, “These are the investors for the
clinic.” Shaham testified that Govgassian told him that he had investors for the clinic,
but he did not ask Govgassian who the investors were.
Shaham testified that he agreed to join Govgassian in opening the Santa Monica
clinic when a doctor Govgassian had arranged to work at the clinic was no longer
available. He testified that he started going to the Santa Monica clinic in December
2007. He said that he never saw Safarian at the clinic and that he did not know that
Safarian was “an investor who put money in Silka’s accounts.” According to Shaham, he
did not meet Safarian until after plaintiffs filed their lawsuit against him.
Viridiana Gilindez, the receptionist at the Santa Monica clinic, testified that during
the period from September to December 2007, Shaham “visited” the clinic between 16 to
20 times. During that period, Gilindez overheard a conversation between Shaham and
Safarian in which they discussed “how much money [Safarian] had invested in the
clinic.” Thus, Gilindez directly contradicted Shaham’s testimony concerning his contacts
with Safarian.
As discussed above, conspiracies are inherently difficult to prove. (Greenwood v.
Mooradian, supra, 137 Cal.App.2d at p. 538.) Accordingly, a jury may infer a
conspiracy “from the nature of the acts done, the relations of the parties, the interests of
the alleged conspirators, and other circumstances.” (Ibid.) Sufficient evidence was
adduced at trial from which the jury could infer that Shaham conspired with Govgassian
and Agadjanian to defraud plaintiffs. The evidence shows that Shaham had a long-term
business relationship with Govgassian and Agadjanian; that Govgassian and Agadjanian
had numerous discussions with plaintiffs about investing in the Santa Monica clinic; that
Shaham participated in discussions between Govgassian and Agadjanian and plaintiffs
about investing in the Santa Monica clinic; and that some of the proceeds of plaintiffs’
investment in the Santa Monica clinic were deposited in Silka Enterprises, Inc.’s account.
12
Shaham’s testimony that he did not know that Safarian was an investor in the Santa
Monica clinic, that he started work at the clinic in December 2007 and never saw
Safarian at the clinic, and that he did not meet Safarian until after the lawsuit was filed in
this case, was contradicted by Safarian’s testimony that Govgassian introduced her and
Sanamyan to Shaham as investors during the clinic’s construction and Gilindez’s
testimony that Shaham began work at the clinic in September 2007 and that she
overheard a conversation between Shaham and Safarian in which they discussed “how
much money [Safarian] had invested in the clinic.”
In his supplemental letter brief, Shaham states that although it was illegal for
plaintiffs to acquire a one-third ownership interest in the Santa Monica clinic because
such ownership constituted the practice of medicine without a license (Bus. & Prof.
Code, § 2052, subd. (a); People v. Superior Court (2013) 218 Cal. App. 4th 492, 496), it
was legal for them to acquire a one-third ownership interest in Hippocratic because
Hippocratic’s providing of medical practice management services only did not constitute
the illegal practice of medicine.9 The judgment must be reversed, Shaham contends,
because the record does not contain evidence that he knew that plaintiffs’ investment was
in the Santa Monica clinic rather than in Hippocratic. That is, Shaham argues that the
“problem with plaintiffs’ conspiracy theory is that they failed to present any evidence that
[he] knew the proposed investment was anything other than a perfectly legal investment
in a medical practice management business.” Shaham contends that he “understood” that
plaintiffs were investing in Hippocratic and “the management of the new medical clinic
facility.” His citations to the record do not support such a claimed “understanding”—i.e.,
Shaham does not cite any part of the record where he testified that he understood that
9 For the first time in this appeal, Shaham claims in his supplemental letter brief that
the judgment also should be reversed because plaintiffs did not present sufficient
evidence of an “actionable” civil conspiracy as their fraud cause of action was based on
the illegal purchase of an interest in a medical practice in violation of Business and
Professions Code section 2052, subdivision (a). Shaham has forfeited this claim by
failing to raise it in his opening brief. (Lewis v. City of Benicia (2014) 224 Cal. App. 4th
1519, 1533.)
13
plaintiffs had invested in Hippocratic and not in the Santa Monica clinic. The evidence
discussed above demonstrates that Shaham knew that plaintiffs invested in the Santa
Monica clinic and that he participated in securing that investment. As a result of this and
the other evidence discussed above, there is sufficient evidence to support Shaham’s
liability as a conspirator in the fraudulent activity.
II. Admission of the Comprehensive Management and Administrative Services
Agreement
Shaham contends that the trial court erred in admitting the comprehensive
management and administrative services agreement (agreement)—a purported May 1,
2007, agreement between Hippocratic and Silka/Salud concerning Hippocratic’s
providing of management, administrative, and support services to the Santa Monica
clinic—because it was not authenticated. In support of his contention, Shaham relies on
evidence that the agreement was created after plaintiffs invested with Govgassian,
Govgassian’s trial testimony that there was no management agreement between
Hippocratic and Silka/Salud, Shaham’s testimony that he did not sign the agreement, and
Agadjanian’s testimony that she was not sure if Shaham’s purported signature on the
agreement was Shaham’s signature. The trial court did not abuse its discretion in
admitting the agreement.
“A writing may be authenticated by evidence that: [¶] (a) The party against
whom it is offered has at any time admitted its authenticity; or [¶] (b) The writing has
been acted upon as authentic by the party against whom it is offered.” (Evid. Code, §
1414.) “[T]he various means of authentication as set forth in Evidence Code sections
1410-1421 are not exclusive. Circumstantial evidence, content and location are all valid
means of authentication. [Citations.]” (People v. Gibson (2001) 90 Cal. App. 4th 371,
383.) We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal. 4th 1059,
1078.) A trial court abuses its discretion when it rules in an “arbitrary, capricious, or
14
patently absurd manner that result[s] in a manifest miscarriage of justice [citation].”
(People v. Rodriguez (1999) 20 Cal. 4th 1, 9-10.)
Shaham testified that Silka/Salud produced the agreement at his deposition. When
plaintiffs’ attorney moved to admit the agreement into evidence, Shaham’s attorney
objected based on lack of authentication. The trial court asked Shaham if the signature
above the signature line bearing his name was his signature. Shaham denied that he had
signed the agreement. The trial court sustained Shaham’s authentication objection “so
far.”
Later, Agadjanian testified that she was familiar with Shaham’s signature and that
a signature on the agreement appeared to be his signature although she did not “know”
that the signature was his because she was not present when the agreement was signed.
At her deposition, Agadjanian testified that she had previously seen the agreement at
Silka/Salud’s Santa Monica office “[i]n the file where we have every other
documentation.” She further testified at her deposition that Shaham’s signature appeared
on the agreement twice and that “Harry’s” (apparently Govgassian) initials appeared on
the agreement once. Asked how she knew that the signatures were Shaham’s signatures,
Agadjanian testified that she knew and recognized Shaham’s signature.
Plaintiffs’ attorney moved to admit the agreement into evidence on the grounds
that the agreement was kept in Silka/Salud’s office, Agadjanian produced the agreement
at her deposition,10 and Agadjanian recognized Shaham’s signatures and Govgassian’s
initials on the agreement. Shaham’s attorney objected on hearsay, lack of foundation,
and best evidence grounds. The trial court reserved its ruling, anticipating further
testimony about the agreement.
At the close of plaintiffs’ case, the trial court considered the admissibility of the
agreement. It admitted the agreement under Evidence Code section 1414 on the ground
that “they” had admitted the agreement’s authenticity by producing it at a deposition. In
10 Agadjanian apparently was designated by Silka/Salud under Code of Civil
Procedure section 2025.230 as the person most knowledgeable to testify on its behalf at a
deposition.
15
addition to the trial court’s stated ground, Agadjanian testified at her deposition that the
agreement was kept in the documentation file at Silka/Salud’s Santa Monica office,
Shaham’s signature twice appeared on the agreement, and Govgassian’s initials were on
the agreement. The trial court did not abuse its discretion in determining that the
agreement had been authenticated. (Dart Industries, Inc. v. Commercial Union Ins. Co.,
supra, 28 Cal.4th at p. 1078; People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10; Evid.
Code, § 1414; People v. Gibson, supra, 90 Cal.App.4th at p. 383.)
III. Perjured Testimony
Shaham contends that plaintiffs, Govgassian, and Agadjanian gave perjured
testimony that caused the jury to award excessive damages.11 Shaham’s contention fails.
Shaham claims that plaintiffs’ testimony that they borrowed money to invest in the
medical clinic was false because they borrowed $1.5 million against their home one year
prior to their investment in the medical clinic; plaintiffs’ claim that Sanamyan lost his job
selling cars because he was depressed about the medical clinic was false because
Sanamyan lost his job in mid-2007, the medical clinic opened in July 2007, plaintiffs
knew that they would not receive a return on their investment for six months after the
clinic opened, and Sanamyan lost his job due to the 2007 collapse of the automobile
industry; and plaintiffs’ claim that they lost their home because they borrowed money to
invest in the medical clinic was false because they did not lose their home—they sold it
to Safarian’s brother for $550,000 to avoid repaying the $1.5 million loan, and they
continued to live in the home. Shaham has failed to show that plaintiffs testified
falsely—plaintiffs could have borrowed $1.5 million against their home prior to investing
in the medical clinic and also borrowed money to invest in the clinic; Shaham’s claim
that Sanamyan lost his job due to the collapse of the automobile industry is speculation,
and Sanamyan may have been depressed about his investment in the medical clinic even
11 Although Shaham states in the heading of his argument that Govgassian gave
perjured testimony, he does not identify in his argument any testimony by Govgassian
that he claims was false.
16
if he knew that he would not receive a return on his investment for six months after the
medical clinic opened; and plaintiffs’ sale of their home to Safarian’s brother did not
establish that they did not lose—i.e., have to sell—their house due to their investment in
the medical clinic.
Shaham’s claim that Agadjanian gave false testimony is unclear and does not
identify the testimony he claims is false. His claim is as follows: “Shaham did not know,
and his counsel did not uncover, the surreptitious manner in which Govgassian and
Agadjanian had removed Shaham from Silka Enterprises, Inc. and replaced him with
Agadjanian and Nabil Khalil, M.D., as directors; and then, formed a new professional
corporation, Socal Healthnet, Inc., that then filed a new fictitious name, St. Luke Medical
Clinic, for the very same medical clinic at 5912 Santa Monica Blvd formerly known as
Salud Family Medical Clinic. [¶] The machinations of Agadjanian have only been
understood with the newly discovery documents and a rigorous evaluation of those
documents. The false testimony of plaintiffs and the unsubstantiated insinuations of
plaintiffs’ counsel that Shaham was the owner of the medical clinic, without any evidence
that Shaham did anything other than provide medical services for a fixed monthly fee
dovetailed very neatly into Agadjanian’s testimony that, Shaham was in charge, while, in
fact she was covertly doing everything she could to deprive him of 18 months of unpaid
salary and to undermine his ability to see patients at the medical clinic.”
Shaham bases his contention that plaintiffs and Agadjanian gave false testimony
on his declaration, Luz Rodriguez’s declaration (real estate agent testimony about
transactions on plaintiffs’ property), and exhibits to those declarations that were
submitted in connection with his new trial motion—that is, evidence that was not
presented at trial.12 Shaham may not rely on that evidence to support his claim that
plaintiffs and Agadjanian gave false testimony. In ruling on Shaham’s new trial motion,
12 We deny Shaham’s motion to augment the record on appeal with corrected copies
of his and Rodriguez’s declarations.
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the trial court struck the motion as untimely,13 stating that it thus did not need to consider
the merits of the motion. Alternatively, the trial court ruled that if this court held that
Shaham’s new trial motion was timely filed, it would sustain plaintiffs’ objections to his
and Rodriguez’s declarations and the attached exhibits and deny the motion on the merits.
Because Shaham does not challenge on appeal the trial court’s alternative ruling
sustaining plaintiffs’ objections to his and Rodriguez’s declarations and the exhibits
attached thereto, he cannot rely on that evidence to show that plaintiffs and Agadjanian
gave false testimony. In addition, because Shaham has not shown that plaintiffs and
Agadjanian gave false testimony, he also cannot show that the jury’s verdict was
excessive “in light of” that perjured testimony.
IV. Defense Counsel’s Joint Representation of Shaham, Govgassian, and
Agadjanian
Shaham claims that he was denied a fair trial because his attorneys, first Mary
Der-Parseghian and then Alireza Taheripour, had a conflict of interest in representing
him while also representing Govgassian and Agadjanian. Shaham’s claim fails.
A. Background14
Der-Parseghian represented Shaham, Govgassian, Agadjanian, Silka/Salud, and
Hippocratic until April 1, 2009, when Shaham, Agadjanian, and Silka/Salud substituted
Taheripour for Der-Parseghian as their attorney. On January 7, 2011, about two months
prior to the date then set for trial, Taheripour filed a motion to be relieved as counsel for
Shaham, Agadjanian, and Silka/Salud on the grounds that they were not communicating
13 We address below Shaham’s argument that the trial court erred in denying his new
trial motion on the ground that his notice of intention to file a new trial motion and new
trial motion were not timely filed.
14 Shaham does not set forth or discuss any of the following facts in his briefs on
appeal.
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with Taheripour or paying his bills. On February 22, 2011, Shaham filed an “Ex Parte
Application for Leave to Complete Discovery Closer to Trial Date, to Shorten Time for
the Deposition of Ali Teheripour, Esq., and to Order Ali Teheripour to Turn Over All
Writings Related to the Action Herein.” In his application, Shaham stated, “Ali
Teheripour, Esq. is attempting to conceal from this Court an unlawful and prohibited
conflict of interest in his dual representation of Elsagav Shaham, M.D. and Harry
Govgassian and Alisa Agadjanian, the two very defendants who plaintiffs allege
defrauded plaintiffs out of $250,000.00 by selling to plaintiffs shares in a medical
corporation in which plaintiffs were not allowed by law to hold shares and then, after
taking the money, diverted those moneys for their own use and benefit; and for which
wrongful conduct plaintiffs are now attempting to hold liable Elsagav Shaham, M.D.,
who had no knowledge, participation, or gain from the alleged fraudulent sale.”15 By his
application, Shaham sought to depose Taheripour about his representation of Shaham and
the production of all documents in the action.
Shaham further stated, “The intervention of this Court is necessary to prevent
defendants Harry Govgassian and Alisa Agadjanian, from perpetrating a fraud upon this
Court through the use of their confederates Mary Der Parseghian, defendant Harry
Govgassian’s attorney and Dr. Shaham’s former attorney and who arranged Dr.
Shaham’s representation with Ali Teheripour, Esq., by allowing Ali Teheripour, Esq. to
withdraw at the last moment after fraudulently purporting to represent Dr. Shaham.” He
alleged that he “only understood in the last week that Ali Teheripour, Esq. falsely
represented that he would represent Dr. Shaham and that he would remove Dr. Shaham
from the lawsuit. In fact, Ali Teheripour, Esq. representation of Dr. Shaham was
intended to lull Dr. Shaham into believing that his interests were being represented, when
in fact Dr. Shaham was being set up to be the fall guy for defendants Harry Govgassian
and Alisa Agadjanian.”
15 At the same time, Shaham claimed that he never entered an attorney client
relationship with Taheripour.
19
In his supporting declaration, Shaham claimed that Der-Parseghian told him that
as the sole shareholder of the Silka/Salud clinic he had to be deposed and that she would
represent him at his deposition. She never asked him to sign a retainer agreement. Der-
Parseghian never explained to Shaham that plaintiffs’ action sought to hold him
personally liable for Govgassian’s and Agadjanian’s actions. He believed that the action
concerned Govgassian and Agadjanian who would be paying Der-Parseghian’s fees.
Der-Parseghian never advised him that she had a conflict in representing him and also
representing Govgassian, Agadjanian, Hippocratic, and Silka. After Shaham’s
deposition, Der-Parseghian told him that he should have representation separate from
Govgassian. Der-Parseghian introduced Shaham to Taheripour whom she said would
assume his, Agadjanian’s, and Silka/Salud’s representation.
Shaham further declared that Taheripour did not explain to him that plaintiffs’
action sought to hold him personally liable for Govgassian’s and Agadjanian’s actions.
Taheripour did not advise him that he—Taheripour—had a conflict of interest in
representing Shaham and also representing Agadjanian, and Silka/Salud. Taheripour
never asked him to sign a retainer agreement. Shaham believed that Taheripour knew the
latter should never have represented Shaham because there was an “irresolvable conflict”
with Govgassian, Agadjanian, and Silka/Salud.
On February 22, 2011, the trial court denied Shaham’s ex parte application for
lack of proper notice. The next day, Taheripour requested that the trial court take off
calendar his motion to be relieved as counsel for Shaham, Agadjanian, and Silka/Salud.
On February 24, 2011, Shaham filed a second ex parte application, seeking to have
Der-Parseghian and Taheripour turn over their files to him, to continue the trial 120 days,
and to reopen discovery. In the application, Shaham stated that when Taheripour
informed him that he was withdrawing his motion to be relieved as counsel, Taheripour
and Der-Parseghian offered to “share all the information in their files with [him] so that
[he] could become familiar with the facts that would be presented on his behalf at the
time of trial.” Shaham stated that he needed to review the files to determine “whether the
conflicts between himself and the other defendant(s) can be resolved so that Attorney
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Taheripour can continue to represent both defendants, and if not, he needs time to find
alternate counsel and the ability to obtain the necessary evidence by reopening
discovery.”
In his supporting declaration, Shaham stated, “Since neither Ali Taheripour, Esq.
nor my prior attorney Mary Der Parseghian, Esq. were able to remove me from the
lawsuit as promised, they should never have represented me. If I understood what I read
on the court’s computer, the complaint, the first amended and second amended
complaints show an obvious conflict of interest between me and Harry Govgassian,
Alisa Agajanian, Silka Enterprises Inc, and Salud Family Medical Clinic.”
The trial court denied the second ex parte application on the ground that Shaham
did not have standing to bring an ex parte application because he was represented by
counsel. Shortly thereafter, on March 14, 2011, Taheripour informed the trial court that
he wanted to withdraw as Shaham’s counsel, but that Shaham was unwilling to sign a
substitution of attorney form. The trial court’s minute order stated that it had “indicate[d]
that it would be willing to have a discussion in chambers with counsel and his client. [¶]
Later, the Court finds that defendnat [sic.] Elsagav Shaham who had appeared today for
trial leaves the Court without informing his attorney or the Court.”
The record on appeal does not contain a subsequent substitution of attorney form
substituting new counsel for Taheripour as Shaham’s attorney or a subsequent motion by
Shaham to disqualify Der-Parseghian prior to trial. There appears to be no other
references in the record to a conflict of interest between Shaham and Der-Parseghian and
Taheripour until Shaham’s new trial motion. On July 19, 2012, after the jury returned its
verdict, Shaham substituted himself, in pro per, for Taheripour.
B. Application of Relevant Principles
Rules of Professional Conduct, Rule 3-310(C) provides in relevant part, “A
member shall not, without the informed written consent of each client: [¶] (1) Accept
representation of more than one client in a matter in which the interests of the clients
potentially conflict; or [¶] (2) Accept or continue representation of more than one client
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in a matter in which the interests of the clients actually conflict . . . .” “Attorneys who
undertake to represent parties with divergent interests owe the highest duty to each to
make a full disclosure of all facts and circumstances which are necessary to enable the
parties to make a fully informed decision regarding the subject matter of the litigation,
including the areas of potential conflict and the possibility and desirability of seeking
independent legal advice. [Citation.] Failing such disclosure, the attorney is civilly liable
to the client who suffers loss caused by lack of disclosure. [Citation.]” (Klemm v.
Superior Court (1977) 75 Cal. App. 3d 893, 901.)
“‘It is also an attorney’s duty to protect his client in every possible way, and it is a
violation of that duty for him to assume a position adverse or antagonistic to his client
without the latter’s free and intelligent consent given after full knowledge of all the facts
and circumstances. [Citation.] By virtue of this rule an attorney is precluded from
assuming any relation which would prevent him from devoting his entire energies to his
client’s interests. Nor does it matter that the intention and motives of the attorney are
honest. The rule is designed not alone to prevent the dishonest practitioner from
fraudulent conduct, but as well to preclude the honest practitioner from putting himself in
a position where he may be required to choose between conflicting duties, or be led to an
attempt to reconcile conflicting interests, rather than to enforce to their full extent the
rights of the interest which he should alone represent. [Citation.]’” (Klemm v. Superior
Court, supra, 75 Cal.App.3d at pp. 901-902.)
Shaham argues that Der-Parseghian and Taheripour had an actual conflict in
representing him while also representing Govgassian and Agadjanian because
Govgassian and Agadjanian “perjured themselves numerous times in their testimony,”
and Der-Parseghian and Taheripour failed to conduct any discovery in the case, including
discovery of Hippocratic’s and Salud Santa Monica’s business and financial records,
Govgassian’s and Agadjanian’s bank and financial records, and plaintiffs’ business and
financial records. Shaham argues that at trial neither Der-Parseghian (who no longer
represented Shaham) nor Taheripour introduced evidence of Hippocratic’s, Silka/Salud’s,
or Salud Santa Monica’s financial and bank records to trace plaintiffs’ investment funds
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to show that he did not receive any of the funds, to show that Govgassian and Agadjanian
received and controlled all of plaintiffs’ investment funds, to show that plaintiffs’ funds
were used properly in connection with Salud Santa Monica, to show that Salud Santa
Monica treated patients and generated receivables and to trace those receivables, and to
show that Salud Santa Monica was not insolvent and plaintiffs’ investment funds had not
been lost.
Shaham contends that diligent representation of him required Taheripour to raise
defenses that discredited Govgassian and Agadjanian. “Conceivably,” he contends,
Taheripour should have filed a cross-complaint on his behalf against either or both
Govgassian and Agadjanian. A conflict arose, Shaham argues, when Der-Parseghian and
Taheripour failed to “advocate” defenses unique to him. Relying on Tsakos Shipping &
Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal. App. 4th 74, Klemm v.
Superior Court, supra, 75 Cal.App.3d at p. 901, and Gregory v. Gregory (1949) 92
Cal. App. 2d 343, Shaham claims that the joint representation in this case denied him a fair
trial and led to a windfall for plaintiffs
The record on appeal reflects that Shaham believed, nearly a year and a half prior
to the ultimate trial date, that there was an actual conflict in Der-Parseghian’s former
representation of Shaham, Govgassian, and Agadjanian, and in Taheripour’s then present
representation of Shaham and Agadjanian. Shaham filed ex parte applications for
discovery concerning the conflicts and for a trial continuance to consider Taheripour’s
continued representation. The trial court denied the ex parte applications on timeliness
and standing grounds—i.e., not on the merits. In March 2011, shortly after the trial court
denied Shaham’s ex parte applications, Taheripour sought to withdraw as Shaham’s
counsel, but Shaham refused to sign a substitution of attorney form. Thereafter, the
record on appeal does not contain a substitution of attorney form substituting new
counsel for Taheripour as Shaham’s attorney until after trial when Shaham substituted
himself, in pro per, for Taheripour. The record also does not contain a motion by
Shaham to disqualify Der-Parseghian. Given Shaham’s understanding of the conflicts
issues well before the ultimate trial date, his stridence in addressing them initially, his
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unwillingness to allow Taheripour to withdraw as his counsel, and his subsequent
apparent abandonment of the conflicts issues including his failure to move to disqualify
Der-Parseghian, Shaham cannot have proceeded to trial hoping to prevail with
Taheripour as his counsel, and then claim on appeal that he received an unfair trial due to
Der-Parseghian’s and Taheripour’s conflicts when he lost at trial. Any recourse he may
have will be to proceed against them.
V. Notice of Intention to File a New Trial Motion and New Trial Motion
Shaham contends that the trial court erred when it denied his new trial motion on
the grounds that he did not timely file his notice of intention to file a new trial motion and
his new trial motion. Because the trial court also considered and denied Shaham’s new
trial motion on the merits—a ruling Shaham does not challenge, Shaham has not shown
that the trial court erred when it denied his new trial motion even if it erred in ruling that
the motion was untimely.
The trial court issued alternative rulings for denying Shaham’s new trial motion
and his motion for judgment notwithstanding the verdict. In its minute order,16 the trial
court ruled: “The Motions are untimely and thereby stricken and the Motions Denied on
that basis and the arguments re the merits need not be considered; and if an appellate
Court disagrees with the timeliness finding; the Court would evaluate the merits and
adopt the reasoning of the Plaintiffs’ counsel’s Opposition papers as the basis to Deny
both motions by Dr. Shaham. [¶] Further, the Court would sustain all the objections of
the Plaintiffs to the Declarations of Elsagav Shaham, MD and Luz Rodriguez as well as
the attached Exhibits. The Court adopts the reasoning of Plaintiffs papers in making this
ruling.”
Thus, although the trial court ruled that Shaham’s new trial motion was untimely
and struck the motion on that basis, it alternatively ruled that if the motion had been
timely filed, it would have denied the motion on the merits. On appeal, Shaham
16 Shaham did not designate the reporter’s transcript for the hearing as part of the
record on appeal, which is a ground in itself for rejecting the claim.
24
challenges the trial court’s ruling denying his new trial motion on the ground that it was
not timely filed. He does not challenge the trial court’s alternative ruling denying the
motion on the merits. Because Shaham does not challenge the trial court’s alternative
ruling denying his new trial motion on the merits, he has failed to demonstrate that the
trial court erred in denying his new trial motion.
DISPOSITION
The judgment is affirmed. Plaintiffs are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
TURNER, P. J.
MINK, J.
 Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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