Miraskandari v. Edwards Wildman Palmer LLP ( 2022 )

Filed 4/25/22 (unmodified opinion attached)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
SHAHROKH MIRESKANDARI, B301785
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC517799
v.
EDWARDS WILDMAN ORDER MODIFYING OPINION
PALMER LLP et al., [NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed on April 8, 2022, be
modified as follows:
The following additional paragraph should be added to
footnote 1, on page 3:
“Mireskandari’s lead appellate counsel,
Becky S. James, filed the opening brief and
appellant’s appendix while at her former firm,
James & Associates. In mid-2021, James
merged her former firm with Dykema Gosset,
and Mireskandari retained Dykema Gosset to
represent him in this appeal and to file the
appellant’s reply brief on his behalf. In his
reply brief, Mireskandari opposed the motion
for sanctions without authorization. (Rule
8.276(d) [“An opposition [to a motion for
sanctions] may not be filed unless the court
sends [written] notice” that it is considering
imposing sanctions.].) He asserted the
motion was “meritless,” arguing (among other
things) his 9,700-page appellant’s appendix
necessarily complied with the California Rules
of Court because, if it had not, this court’s
“clerk would have had a duty to reject it.”
(See rule 8.18 [“Except as these rules provide
otherwise, the reviewing court clerk must not
file any record or other document that does not
conform to these rules.”].) The argument
naturally ignored that, notwithstanding the
reviewing court clerk’s role under rule 8.18,
sanctions are authorized for unreasonable rule
violations when those violations appear in a
duly filed document. (See rule 8.276, subd.
(a)(4).) Ultimately, when this court notified
Mireskandari we were considering imposing
sanctions and authorized him to file an
opposition, his appellate counsel acknowledged
the rule violations in his appendix and opening
brief.”
2
There is no change in the judgment.
____________________________________________________________
EGERTON, J. LAVIN, Acting P. LIPNER, J. ∗
J.
∗
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
3
Filed 4/8/22 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
SHAHROKH MIRESKANDARI, B301785
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC517799
v.
EDWARDS WILDMAN
PALMER LLP et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Terry A. Green, Judge. Affirmed in part,
reversed in part.
Dykema Gossett, Becky S. James and Lisa M. Burnett
for Plaintiff and Appellant.
Valle Makoff, John M. Moscarino and Katherine Balatbat
for Defendants and Respondents.
_________________________
* Under California Rules of Court, rules 8.1100 and 8.1110,
this opinion is certified for publication with the exception of
parts 2 through 7 of the Discussion section.
Plaintiff Shahrokh Mireskandari sued his former
attorneys, defendants Edwards Wildman Palmer LLP (EWP)
and Dominique Shelton, for professional negligence, breach
of fiduciary duty, and breach of contract, alleging, among other
things, defendants failed to advise him of our state’s anti-SLAPP
statute before filing a complaint on his behalf against a
newspaper publisher in California federal court. He alleged
the lawsuit predictably drew a successful special motion to strike,
which caused him to incur substantial attorney fees litigating
and losing the motion and deprived him of discovery he intended
to use in a disciplinary proceeding pending against him in
the United Kingdom, ultimately resulting in the loss of his
law license, substantial fines and fees, and bankruptcy.
The trial court granted defendants’ motion for summary
adjudication of the professional negligence claim, concluding
Mireskandari could not establish causation under the case-
within-a-case method because he could not prove he would have
prevailed in his lawsuit against the publisher but for defendants’
negligence. We conclude the trial court erred. As we will
explain, while we agree with the court’s subsequent ruling that
Mireskandari’s damages claim based on the adverse outcome
of the U.K. disciplinary proceeding was too speculative to create
a question of fact for a jury, those damages were only part of his
cause of action for professional negligence. Because an attorney
owes a duty of care to advise a client of foreseeable risks of
litigation before filing a lawsuit on the client’s behalf, we
conclude Mireskandari asserted a viable claim that, but for
defendants’ negligent failure to advise him of the risks associated
with a potential anti-SLAPP motion, he would not have filed
2
his lawsuit in California and would not have incurred damages
from litigating and losing an anti-SLAPP motion.
Mireskandari asserts several other claims of error
regarding the court’s pre-trial, trial, and post-trial rulings.
We reject each of these challenges for the principal reason,
among others, that Mireskandari has categorically failed to
meet his burden to present an adequate record and argument
affirmatively demonstrating prejudicial error.
Defendants moved for the assessment of sanctions
against Mireskandari and his appellate counsel based on
several material violations of the California Rules of Court
governing the opening brief and appellant’s appendix in civil
appeals. 1 We gave Mireskandari and his counsel written notice
that we were considering imposing sanctions for some of those
violations. (Rule 8.276(c).) In response, Mireskandari’s counsel
acknowledged the rule violations, but explained they were
unintended and resulted largely from an unanticipated
combination of receiving a disordered record from trial counsel
and strained office resources due to the COVID-19 pandemic.
While we remain troubled by the scope of these admitted
infractions, we conclude counsel’s contrition and the
unprecedented hardship her office and staff faced due to
the pandemic make sanctions inappropriate in this case.
We reverse the order summarily adjudicating the
professional negligence claim and affirm the judgment
in all other respects. The motion for sanctions is denied.
1 Rule references are to the California Rules of Court.
3
FACTS AND PROCEDURAL HISTORY
This case and the underlying litigation that spawned it
have a lengthy history. Our summary here will be brief, and we
will discuss certain proceedings in more detail when we address
Mireskandari’s related claims of error.
1. The Daily Mail Articles and the U.K. Disciplinary
Proceeding Against Mireskandari
Mireskandari was educated in the United States and later
moved to London, England. He was admitted to the English bar
as a solicitor in 2000 and became a partner in the law firm of
Dean & Dean in 2005.
Beginning in September 2008, the Daily Mail, a London
tabloid, published a series of unflattering articles about
Mireskandari. Among other things, the articles said
Mireskandari had been convicted of fraud in California in
connection with a telemarketing scam; he claimed to have a
bachelor’s degree from the University of Pennsylvania, of which
the university had no record; he failed to pass his classes at
a “minor local” law school in the United States; he obtained
his law degree from the American University of Hawaii, which
subsequently was shut down by the courts; and he overcharged
clients for legal work.
In December 2008, the Solicitors Regulation Authority
(SRA), the regulatory body for solicitors in England and Wales,
took over Dean & Dean and brought a disciplinary action against
Mireskandari in the Solicitor’s Disciplinary Tribunal (SDT).
The SRA alleged Mireskandari had misrepresented his
education, training, and background to gain bar admission.
It also alleged that, after obtaining his license, Mireskandari
4
misused client funds; lied about doctoring evidence; and invited
serious adverse findings for his litigation misconduct.
2. Mireskandari Retains Defendants to Sue the
Daily Mail in the United States
Peter Herbert was the chair of the U.K.’s Society of Black
Lawyers (“SBL”) and a lawyer who represented Mireskandari
and directed his media strategy. The SBL had an ongoing
campaign alleging the SRA disproportionately targeted minority
solicitors because of their race.
In December 2011, Herbert travelled to the United States,
where he met Brett Bocchieri, a Los Angeles attorney who
Mireskandari testified was the “quarterback” of his U.S. legal
team. Bocchieri proposed a plan for Mireskandari to file lawsuits
against the SRA and the Daily Mail in California. Herbert
searched for an American attorney with “privacy/media law”
experience to represent Mireskandari. He was eventually
referred to Shelton, who at the time was a partner in EWP’s
Los Angeles office.
On March 6, 2012, Herbert and Mireskandari’s future wife,
Saeedeh Mirshahi, met with Shelton to discuss a potential
privacy claim. The essence of the claim was that a Los Angeles-
based Daily Mail reporter, David Gardner, misrepresented
he had Mireskandari’s consent to search a National Student
Clearinghouse (NSC) website to access Mireskandari’s
confidential education records.
On April 4, 2012, EWP filed Mireskandari’s invasion
of privacy case in the United States District Court for the
Central District of California, alleging Gardner had hacked
into Mireskandari’s confidential educational records on the
NSC website.
5
3. The First Amended Complaint; the Daily Mail’s
Special Motion to Strike; and the SDT’s Decision
Striking Mireskandari from the Roll of Solicitors
On April 16, 2012, the NSC informed Mireskandari it
did not have his law school records. Because this disclosure
confirmed there had not been an “unlawful hacking,” Shelton
advised Mireskandari that he would need either to dismiss
the case or to file an amended complaint. She also advised
Mireskandari that continuing the litigation would pit his
privacy rights against the Daily Mail’s First Amendment rights
and would likely draw a motion to strike under California’s
anti-SLAPP statute. Mireskandari instructed Shelton to file
the amended complaint.
On May 23, 2012, defendants filed Mireskandari’s first
amended complaint, alleging, among other things, the Daily Mail
published false and misleading articles about him.
In June 2012, Associated Newspapers Limited, the
Daily Mail’s publisher, filed a special motion to strike all
Mireskandari’s state law claims under the anti-SLAPP statute.
The same month, the SDT issued its decision in
Mireskandari’s disciplinary proceeding. Among other things,
the tribunal found Mireskandari misrepresented his post-
graduate education; he had been convicted of telemarketing fraud
in California; and his conduct “had caused financial damage
to former clients.” The SDT concluded Mireskandari’s conduct
“had shown a complete and blatant disregard for his professional
obligations” and, if Mireskandari were allowed to continue to
practice law, he would pose “a very significant risk to the public.”
Finding “no means by which he could rehabilitate himself,” the
tribunal ordered Mireskandari struck from the Roll of Solicitors.
6
4. The Attorney-Client Relationship Deteriorates
and Mireskandari Retains Successor Counsel
Following a discussion about his case and EWP’s bills,
Mireskandari sent Shelton an email entitled “Notice,” accusing
her of acting “in complete breach of the terms of the retainer
between me and your firm.” He said he was “deeply troubled”
by a “swinging pendulum of advice” and demanded written
communications “to avoid any misunderstandings.” Shelton
consulted with EWP’s general counsel, Jeffrey Swope, about
Mireskandari’s complaints and the client relationship.
Notwithstanding the billing dispute, EWP added personnel to
Mireskandari’s litigation team to oppose the anti-SLAPP motion.
In July 2012, Mireskandari retained Bonnie Eskenazi
and her firm Greenberg Glusker to work on the Daily Mail case.
The firm later substituted into the case to replace EWP. In
October 2012, Eskenazi sent Mireskandari an email identifying
“a damages/causation problem and a res judicata/collateral
estoppel problem” due to the SDT judgment. In January 2013,
Eskenazi sent Mireskandari a 43-page memorandum discussing
the preclusive effect of the SDT judgment and emphasizing
the need to formulate “a viable exit strategy.”
In April 2013, Bocchieri replaced Greenberg Glusker
as Mireskandari’s counsel in the Daily Mail case. The attorney-
client relationship soured over Mireskandari disregarding
Bocchieri’s advice, and Mireskandari substituted another
attorney into the case.
In October 2013, the federal district court granted the
publisher’s special motion to strike several of Mireskandari’s
claims, with leave to amend.
7
In November 2013, Mireskandari filed a second amended
complaint. The Daily Mail’s publisher filed a second anti-SLAPP
motion. After lodging a third amended complaint, Mireskandari
dismissed his federal action.
In March 2014, Mireskandari filed a new action against the
Daily Mail’s publisher in California state court. The publisher
filed another anti-SLAPP motion. The trial court granted the
motion in part but denied it with respect to the false light claim.
This court reversed the order in part and directed the trial court
to grant the anti-SLAPP motion in its entirety, concluding the
SDT judgment barred Mireskandari’s false light claim under
the substantial truth doctrine. 2
5. Mireskandari Sues Defendants for Legal Malpractice;
Pretrial Rulings Limit Mireskandari’s Damages
Claims
In August 2013, Mireskandari filed this lawsuit against
defendants. His operative second amended complaint asserted
causes of action for professional negligence, breach of fiduciary
duty, and breach of contract. It alleged defendants negligently
failed to advise Mireskandari of California’s anti-SLAPP
statute; breached their fiduciary duties by, among other
things, misrepresenting Shelton’s qualifications, generating
unreasonable fees, and failing to advise Mireskandari about
California’s anti-SLAPP statute; and breached provisions of
2 Defendants’ request for judicial notice of records from
Mireskandari’s earlier appeal (Case No. B262942) and writ
petition (Case No. B264169) is granted. We also take judicial
notice of the federal district court’s order denying Mireskandari’s
application for discovery in Case No. CV 12-10310.
8
the parties’ engagement agreement pertaining to the retainer
payment, monthly invoices, and fee disputes.
Defendants moved for summary adjudication of the
professional negligence claim, arguing Mireskandari could not
establish causation under the case-within-a-case method because
he did not predicate his claim on the outcome of the Daily Mail
case and he admitted a more favorable outcome in the SDT
disciplinary proceeding was speculative. The trial court granted
the motion.
Citing discovery responses in which Mireskandari claimed
over $220 million in damages associated with the judgment
against him in the SDT proceeding, defendants advised the
trial court of their intention to move for an order precluding
Mireskandari from introducing evidence or making any argument
for recovery of those damages. The parties stipulated to briefing
and a hearing under Evidence Code section 402 to adjudicate
this “important threshold issue.” After a nine-day evidentiary
hearing, the court entered an order precluding Mireskandari
from presenting the damages theory to the jury, concluding
the evidence was too speculative to prove the causation or
damages elements of the claim.
Defendants filed a motion in limine arguing Mireskandari
could not claim the attorney fees incurred in the Daily Mail case
as damages because he did not assert he could have achieved
a more favorable result in that action. The trial court denied
the motion in part, concluding the case-within-a-case method
did not preclude Mireskandari from seeking recovery of those
attorney fees on his breach of fiduciary duty claim. However,
the court found it was not “reasonably foreseeable” that
Mireskandari’s successor counsel would file a second amended
9
complaint, then dismiss the federal action in favor of a state
court action. Thus, the court ruled Mireskandari could introduce
evidence of only those attorney fees incurred through the date
of the district court’s anti-SLAPP ruling in the Daily Mail case.
6. The Jury Finds Shelton Did Not Breach Her
Fiduciary Duty and Mireskandari Could Have
Avoided Damages Attributable to EWP’s Breach
In May 2019, Mireskandari’s claims for breach of
fiduciary duty and breach of contract proceeded to a jury trial.
He presented five theories of liability for breach of fiduciary duty,
asserting defendants “knowingly acted” against his interests
in connection with: (1) descriptions of Shelton’s qualifications;
(2) advice about the anti-SLAPP statute; (3) failing to disclose
malpractice; (4) abandonment; and (5) assembling a team of
lawyers to act against him. The jury found Shelton was not liable
on any theory. With respect to EWP, the jury found the firm
was not liable for breach of the parties’ engagement agreement,
but EWP had breached its fiduciary duty by assembling a team
of lawyers to act against Mireskandari. However, the jury
awarded Mireskandari no damages, finding he could have
“reasonably avoided harm” with respect to all the attorney fees
he claimed as damages.
Mireskandari moved for a new trial and for judgment
notwithstanding the verdict. The trial court denied the motions.
This appeal followed.
10
DISCUSSION
1. Defendants Failed to Satisfy Their Initial Burden
for Summary Adjudication of the Professional
Negligence Claim
The rules governing summary adjudication are well
established. “A defendant making [a] motion for summary
adjudication has the initial burden of showing that the
[challenged] cause of action lacks merit because one or more
elements of the cause of action cannot be established or there is
a complete defense to that cause of action.” (Intrieri v. Superior
Court (2004) 117 Cal.App.4th 72, 81–82; Code Civ. Proc., § 437c,
subd. (f)(1).) “If the defendant fails to make this initial showing,
it is unnecessary to examine the plaintiff’s opposing evidence
and the motion must be denied.” (Intrieri, at p. 82; Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; Code Civ. Proc.,
§ 437c, subd. (p)(2).) The court is authorized to grant summary
adjudication only if the motion “completely disposes of a cause
of action.” (Code Civ. Proc., § 437c, subd. (f)(1).)
In reviewing an order granting summary adjudication,
“we apply the same standard of review applicable on appeal
from a grant of summary judgment. [Citation.] Accordingly,
‘ “. . . we take the facts from the record that was before the
trial court when it ruled on that motion. [Citation.] ‘ “We review
the trial court’s decision de novo, considering all the evidence
set forth in the moving and opposing papers except that to which
objections were made and sustained.” ’ [Citation.] We liberally
construe the evidence in support of the party opposing summary
[adjudication] and resolve doubts concerning the evidence in
favor of that party.” ’ ” (Schofield v. Superior Court (2010)
11
190 Cal.App.4th 154, 156–157, quoting Wilson v. 21st Century
Ins. Co. (2007) 42 Cal.4th 713, 716–717.)
We begin with the complaint’s allegations, as the
pleadings “determine the scope of relevant issues” for summary
adjudication. (Nieto v. Blue Shield of California Life & Health
Ins. Co. (2010) 181 Cal.App.4th 60, 74; Hilton K. v. Greenbaum
(2006) 144 Cal.App.4th 1406, 1412.) Mireskandari’s operative
second amended complaint alleges defendants breached
the standard of care by, among other things, failing to advise
Mireskandari, before filing a lawsuit on his behalf, that “filing
the Daily Mail case in a jurisdiction that applied California’s
anti-SLAPP statutes or similar statutes could result in the
defendants in that case filing a motion to dismiss the complaint
pursuant to those statutes; that if such a motion were granted,
Plaintiff would lose his case at the pleading stage and Plaintiff
would be liable for those defendants’ attorneys’ fees; and that,
regardless of whether the trial court granted or denied such a
motion, an appeal could result that would substantially increase
the cost and delay the prosecution of the Daily Mail case.” The
complaint alleges defendants also failed to advise Mireskandari,
“prior to the filing of the Daily Mail case,” that he could have
filed the action “in a jurisdiction that did not apply California’s
anti-SLAPP statute or any similar statute and that, by doing so,
Plaintiff could avoid having his case dismissed at the pleading
stage, exposure to liability for the defendants’ attorneys’ fees and
the increased costs and delay resulting from a successful motion
to dismiss based on California’s anti-SLAPP statutes or similar
statutes.” With respect to causation, the complaint alleges that,
as “a direct, proximate and legal result of Defendants’ breach of
the duty of care owed to Plaintiff, Plaintiff has suffered damages
12
in that Plaintiff was required to engage the services of Greenberg
Glusker to oppose the anti-SLAPP motions in the Daily Mail case
and thereby incurred costs and attorneys’ fees in the amount
of approximately $262,000, plus additional amounts to be
proven at trial, that Plaintiff would not have incurred but for
Defendants’ breach of their duty of care.”
Defendants expressly limited their summary adjudication
motion to challenging the causation element of Mireskandari’s
professional negligence claim. They relied principally upon our
Supreme Court’s statement in Viner v. Sweet (2003) 30 Cal.4th
1232 (Viner) that, “[i]n a litigation malpractice action, the
plaintiff must establish that but for the alleged negligence
of the defendant attorney, the plaintiff would have obtained
a more favorable judgment or settlement in the action in which
the malpractice allegedly occurred.” (Id. at p. 1241, second italics
added.) Based on this passage, defendants argued Mireskandari
could not prevail on his cause of action for professional
negligence, because he did “not predicate his claim on the
outcome of the suit in which defendants . . . represented him”
—i.e., the Daily Mail case filed in federal court. To the extent
Mireskandari advanced the “alternative theory” that he would
have achieved a more favorable result in the SDT disciplinary
proceeding, defendants argued his claim was contrary to the test
for causation under Viner and his discovery responses proved
he lacked sufficient evidence to establish proximate causation.
Mireskandari opposed the motion, characterizing it
as a “disguised motion in limine on damages.” While he
acknowledged that “part” of his claimed damages flowed
from the adverse result of the SDT disciplinary proceeding,
he emphasized that his complaint also sought “attorneys’ fees
13
and costs resulting from Defendants’ negligence in filing the
Daily Mail action in California and subjecting Plaintiff to the
Daily Mail’s Anti-SLAPP motion.” He maintained defendants’
summary adjudication motion “ignore[d] the substantial
attorneys’ fees” incurred in litigating the anti-SLAPP motion,
and he asserted there was “no question” that, by “filing the initial
complaint in California and subjecting Plaintiff to California’s
Anti-SLAPP statute, . . . [defendants] caused Plaintiff’s case
against the Daily Mail to be mired in California for its entire
duration and subjected Plaintiff to hundreds of thousands of
dollars in legal fees and sanctions.” That claim, Mireskandari
argued, was viable under Sindell v. Gibson, Dunn & Crutcher
(1997) 54 Cal.App.4th 1457 (Sindell), where this court held
attorney fees incurred in “unwanted” litigation stemming from
an attorney’s negligence constituted “recoverable damages,”
regardless of the litigation’s ultimate outcome. (Id. at p. 1470.)
The trial court granted defendants’ summary adjudication
motion, albeit with earnest reservations. The court
acknowledged, as Mireskandari had argued, that defendants’
motion did not address all the allegations underpinning the
professional negligence claim. Specifically, the court observed,
the motion did not directly challenge the theory that “if
Mireskandari had been told all these facts about anti-SLAPP,
he would have taken a one-way ticket out of California . . . and
never considered filing . . . here” and “because he wasn’t told
about this anti-SLAPP, he is now stuck with . . . [n]ot only his
own draconian attorneys’ fees, but the other side’s draconian
[attorneys’] fees too.” However, while the trial court expressed
its personal view that Mireskandari’s professional negligence
claim “has merit,” it agreed with defendants that Viner
14
demanded proof of a more favorable judgment in the underlying
action. In view of Viner, the trial court concluded defendants
were entitled to summary adjudication.
Mireskandari contends defendants’ argument and the trial
court’s ruling elevated dicta in Viner over the case’s core holding.
He maintains the actual holding of Viner is a simple recognition
that the “but for” causation standard applies in transactional
malpractice cases, just as it applies in litigation malpractice
cases. Mireskandari argues satisfying this causation standard
does not require proof that the client would have won the
underlying litigation, because the avoidance of “needlessly
incurred” litigation expenses may itself constitute a more
favorable outcome. We agree with Mireskandari.
Viner is not a litigation malpractice case. Our Supreme
Court granted review in Viner to decide “whether the plaintiff
in a transactional legal malpractice action must prove that
a more favorable result would have been obtained but for the
alleged negligence.” (Viner, supra, 30 Cal.4th at pp. 1238–1239,
first italics added.) The bulk of the Viner opinion discusses our
high court’s reasons for rejecting the appellate court’s attempt to
“distinguish litigation malpractice from transactional malpractice
in order to justify a relaxation of the ‘but for’ test of causation
in transactional malpractice cases.” (Id. at p. 1241; see id. at
pp. 1241–1243.) In connection with this discussion, the Viner
court referred to the familiar case-within-a-case method for
establishing causation in litigation malpractice cases, observing,
as defendants emphasized in their summary adjudication motion,
that “[i]n a litigation malpractice action, the plaintiff must
establish that but for the alleged negligence of the defendant
attorney, the plaintiff would have obtained a more favorable
15
judgment or settlement in the action in which the malpractice
allegedly occurred.” (Id. at p. 1241.) But our high court
expressly cautioned that the “requirement that the plaintiff
prove causation should not be confused with the method or
means of doing so,” clarifying, “[p]hrases such as ‘trial within
a trial’ [and] ‘case within a case’ . . . describe methods of proving
causation, not the causation requirement itself or the test for
determining whether causation has been established.” (Id. at
p. 1240, fn. 4, italics added.) In view of this admonition, it is
apparent that the Viner court intended only to illustrate one way
by which a plaintiff establishes but for causation in a litigation
malpractice case; it did not intend to prescribe a blanket method
for determining whether causation has been established in every
litigation malpractice action.
In any event, given that the Viner court granted review
to determine the standard for causation that applies in
transactional malpractice cases (see Viner, supra, 30 Cal.4th
at pp. 1238–1239), the court’s actual holding is unmistakable.
As our high court explained, “In both litigation and transactional
malpractice cases, the crucial causation inquiry is what would
have happened if the defendant attorney had not been negligent.”
(Id. at p. 1242.) Because none of the purported distinctions
between litigation and transactional malpractice cases had any
bearing on this inquiry, the Viner court held, “just as in litigation
malpractice actions, a plaintiff in a transactional malpractice
action must show that but for the alleged malpractice, it is
more likely than not that the plaintiff would have obtained
a more favorable result.” (Id. at p. 1244, second italics added.)
Mireskandari’s professional negligence claim, premised on the
allegations that he would have avoided significant litigation
16
expenses and attorney fee sanctions, but for defendants’
negligent failure to advise him about the anti-SLAPP statute,
satisfies that standard.
As defendants acknowledge, an attorney’s duty to exercise
the skill and care that a reasonably careful attorney would use
in similar circumstances extends to prelitigation investigation
and evaluation of a client’s potential claims. “ ‘When one
suspects that another has caused harm, a preliminary
investigation is usually necessary in order to know whether
one has a potential legal claim, evaluate the likelihood of
success, and decide whether or not to assert it. Consequently,
the investigation of a potential claim is normally and reasonably
part of effective litigation, if not an essential part of it.’ ” (Takhar
v. People ex rel. Feather River Air Quality Management Dist.
(2018) 27 Cal.App.5th 15, 28–29, italics added.) With the duty
to investigate comes an attorney’s duty to evaluate and advise
clients of the risks of contemplated litigation.
Charnay v. Cobert (2006) 145 Cal.App.4th 170 (Charnay)
is instructive. Charnay retained the defendant attorney to
defend her in a limited civil suit by her neighbor to recover
$18,903.64 in repair costs after land subsistence damaged a
slope on subdivided property they shared with other neighbors.
(Id. at pp. 174–175.) According to Charnay, the attorney initially
advised her to settle the neighbor’s action, but then, “recognizing
an opportunity to generate significant attorney fees, changed
his recommendation and suggested [Charnay] vigorously defend
the lawsuit and pursue a cross-complaint for declaratory relief,
reformation, breach of fiduciary duty and indemnity against
the [suing neighbor] and other neighbors in the 60-acre tract.”
(Id. at p. 175.) After lengthy discovery, unsuccessful summary
17
judgment motions, and a 15-day bench trial, the court in the
underlying action entered a judgment against Charnay on the
neighbor’s complaint, her cross-complaint, and a responsive
cross-complaint by the other neighbors, ordering her to pay
the original $18,903.64 in repair costs, “the aggregate sum
of $580,000 for the opposing parties’ attorney fees pursuant
to [a] fee-shifting provision in the [subdivision’s] CC&R’s,” and
other damages. (Id. at p. 176.) Charnay sued her attorney for
professional negligence, alleging the attorney failed to advise
her that his recommended course could subject her to liability
for attorney fees far in excess of the $18,903.64 at issue in
the neighbor’s lawsuit. She alleged, “but for [the attorney’s]
negligence, misrepresentations and omissions, she would
have been able to settle the [original] lawsuit for no more
than $25,000.” (Ibid.) The trial court sustained the attorney’s
demurrer, concluding Charnay could not establish proximate
causation. (Id. at pp. 178–179.) The appellate court reversed.
Addressing causation, the reviewing court rejected the trial
court’s conclusion that Charnay had to allege the neighbor would
have accepted her proposed settlement. (Charnay, supra, 145
Cal.App.4th at p. 180.) Whether Charnay could have settled the
matter for the $25,000 figure was “immaterial” to the causation
issue because, under Viner, she needed “only allege that, but for
[the attorney’s] malpractice, she would have obtained a ‘more
favorable result’ than the $600,000-plus judgment ultimately
rendered against her.” (Charnay, at pp. 180–181, quoting Viner,
supra, 30 Cal.4th at p. 1244.) Charnay met this standard, having
alleged that, if she had been “advised of the consequences of not
prevailing, including the risk of being held liable for the opposing
parties’ attorney fees were she to lose at trial, she would not have
18
acceded to [the attorney’s] advice to go forward with the litigation
and would not have continued with the litigation in the face of
escalating litigation costs on both sides.” (Charnay, at p. 176.)
E-Pass Technologies, Inc. v. Moses & Singer, LLP (2010)
189 Cal.App.4th 1140 (E-Pass) is also instructive. E-Pass
sued the attorneys who represented it in bringing four patent
enforcement actions, after a federal circuit court affirmed a
judgment requiring E-Pass to pay $2.3 million in attorney fees
to the opposing parties as sanctions for bringing frivolous claims.
(Id. at pp. 1143–1146.) The trial court in the state malpractice
action sustained the attorneys’ demurrer on the ground that the
court lacked subject matter jurisdiction over the action because
E-Pass’s claims involved substantial issues of federal patent law.
(Id. at p. 1146.) The appellate court reversed.
The reviewing court reasoned the malpractice action
did not implicate questions of federal law because E-Pass’s right
to relief did not depend on the potential for success in the patent
litigation. (E-Pass, supra, 189 Cal.App.4th at pp. 1149–1150.)
E-Pass had alleged the attorneys “ ‘failed to conduct a pre-filing
investigation’ ” that would have revealed “ ‘there was no
legitimate evidence to support any claims asserted on behalf
of E-Pass,’ ” and the complaint sought “to recover damages
‘caused by defendants’ misconduct [in] misleading E-Pass into
bringing claims which were never viable, . . . gouging E-Pass
with unreasonable attorney fees and costs[,] and . . . subjecting
E-Pass to liability for costs and fees of the prevailing parties
in the underlying actions.’ ” (Id. at p. 1147.) The reviewing court
explained, “E-Pass’s complaint does not rest on the assertion that
defendant’s negligence caused it to lose or fail to enforce patent
rights that it was entitled to enforce. The complaint proceeds
19
on the contrary premise that there was no infringement, as the
federal court held in the underlying litigation, and that E-Pass
was damaged by pursuing litigation that defendants, in the
exercise of reasonable care, should have advised it not to pursue.”
(Id. at p. 1150, italics added.)
Critically, the E-Pass court rejected the contention that
establishing causation and damages required proof of success in
the underlying patent litigation. As with the element of breach,
the court held “to prove damages E-Pass need not establish the
recovery to which it would have been entitled if it had proved
that its patent had been infringed. It need only show the
attorney fees and other liabilities it incurred as the result of
pursuing the litigation” the defendants negligently recommended.
(E-Pass, supra, 189 Cal.App.4th at p. 1151; accord Sindell, supra,
54 Cal.App.4th at p. 1470 [recognizing “well-established principle
that attorney fees incurred through instituting or defending
an action as a direct result of the tort of another are recoverable
damages,” and holding this principle applies to the tort of legal
malpractice, regardless of the outcome of underlying litigation].)
As Charnay and E-Pass illustrate, when an attorney
breaches the duty of care by failing to advise the client of
reasonably foreseeable risks of litigation before a complaint is
filed, the client need not prove the subsequently-filed litigation
would have been successful to establish the causation element
of his professional negligence claim. Rather, the client can
demonstrate he “would have obtained a more favorable result”
(Viner, supra, 30 Cal.4th at p. 1244), by proving that, but for the
attorney’s negligence, he would not have pursued the litigation
and thus would not have incurred the damages attributable
to the foreseeable risks that the attorney negligently failed to
20
disclose. (See Charnay, supra, 145 Cal.App.4th at pp. 180–181;
E-Pass, supra, 189 Cal.App.4th at pp. 1150–1151.) In other
words, to answer the “crucial causation inquiry” articulated in
Viner—“what would have happened if the defendant attorney
had not been negligent” (Viner, at p. 1242, italics omitted)—
the client may respond with evidence showing he would not
have filed the litigation in the first place and he would have
been better off as a result.
Not only is this conclusion consistent with the Viner court’s
articulation of the general rule of causation in legal malpractice
cases, but it is also compelled by logic and sound policy. “An
attorney’s duty, the breach of which amounts to negligence, is not
limited to his failure to use the skill required of lawyers. Rather,
it is a wider obligation to exercise due care to protect a client’s
best interests in all ethical ways and in all circumstances.” (Day
v. Rosenthal (1985) 170 Cal.App.3d 1125, 1147.) As Mireskandari
reasonably submits, if attorneys were immune from malpractice
liability for failing to advise a client not to file a lawsuit, it would
allow attorneys to “collect handsome fees for pursuing litigation,
without regard to whether the litigation is likely to be successful,
whether another remedy is available that may be more beneficial
to the client, and whether the contemplated litigation exposes
the uninformed client to unacceptable risks such as fee-shifting
provisions.” Embracing defendants’ narrow reading of what
appears to be dicta in Viner would effectively endorse this
absurd result—an attorney could negligently convince a client
to pursue costly litigation with no hope of success, then claim
21
his malpractice was not the legal cause of the client’s injury
because the litigation in fact had no hope of success. 3
That is essentially what happened here on summary
adjudication. Mireskandari alleged that, but for defendants’
failure to advise him about the anti-SLAPP statute, he would
not have filed the Daily Mail case in California, and he would
not have incurred substantial legal fees to litigate an anti-SLAPP
motion, nor would he have been subject to a sanction for
3 We are mindful that the dicta of the Supreme Court,
“while not controlling authority, carries persuasive weight and
should be followed where it demonstrates a thorough analysis
of the issue or reflects compelling logic.” (Smith v. County of
Los Angeles (1989) 214 Cal.App.3d 266, 297; Candelore v. Tinder,
Inc. (2018) 19 Cal.App.5th 1138, 1149.) However, as we have
explained, it is apparent from the context of the Viner court’s
reference to the case-within-a-case method that our high court
did not intend to prescribe a blanket method for determining
whether causation had been established in every litigation
malpractice action, but meant only to illustrate one way by which
the element could be established. (See Viner, supra, 30 Cal.4th
at p. 1240, fn. 4 [the “requirement that the plaintiff prove
causation should not be confused with the method or means
of doing so”; “[p]hrases such as ‘trial within a trial’ [and] ‘case
within a case’ . . . describe methods of proving causation, not the
causation requirement itself or the test for determining whether
causation has been established”].) Moreover, because applying
defendants’ narrow reading of this passage to pre-filing
professional negligence claims would produce the absurd results
outlined above, we must decline to follow that narrow reading
on this point. (See Candelore, at p. 1149 [declining to follow
Supreme Court dicta where it conflicted with direct Supreme
Court precedent on particular point and thus could not have
been intended to cover controversy at issue].)
22
the opposing side’s attorney fees when he lost. In moving
for summary adjudication, defendants did not challenge the
allegation that they breached the standard of care. Instead,
they argued they could not be held liable for this alleged
malpractice because the risk they negligently failed to disclose
predictably came to fruition—the Daily Mail brought a successful
anti-SLAPP motion and Mireskandari, saddled with his own
substantial attorney fees and the Daily Mail’s, dismissed the
federal case. It was a classic catch-22 argument, premised,
as we have explained, on an unreasonably narrow reading of
an isolated passage in Viner. We must reject it. (See Boeken v.
Philip Morris USA Inc. (2013) 217 Cal.App.4th 992, 1000 [Courts
must reject interpretations of case law that “make[ ] little sense”:
“ ‘There is enough unavoidable absurdity in life. We should avoid
absurdity in the law.’ ”].)
In defense of the summary adjudication ruling, defendants
argue they satisfied their moving burden by “countering the
specific ‘hypothetical alternative’ Mireskandari elected”—namely,
his claim that if he had filed the Daily Mail action in Virginia,
he would have obtained evidence to change the result of the
SDT proceeding. As we explain below, we find no error in the
trial court’s subsequent ruling that Mireskandari’s claim for
damages related to the SDT judgment was too speculative to
be presented to a jury. However, as Mireskandari emphasized in
his summary adjudication opposition, only “part” of his claimed
damages flowed from the adverse result of the SDT disciplinary
proceeding, and defendants’ motion failed to address the attorney
fees and sanctions he incurred in connection with the Daily Mail’s
anti-SLAPP motion. Because summary adjudication must
completely dispose of the challenged cause of action (Code Civ.
23
Proc., § 437c, subd. (f)(1)), defendants could not meet their
initial burden by showing only one aspect of the professional
negligence claim lacked merit. (See McCaskey v. California State
Automobile Assn. (2010) 189 Cal.App.4th 947, 975 [“If a cause
of action is not shown to be barred in its entirety, no order for
summary judgment—or adjudication—can be entered.”].)
Finally, defendants argue Mireskandari cannot establish
causation because the jury in the trial of his breach of fiduciary
duty claim found he “could have reasonably avoided his claimed
damages, including the fees allegedly incurred to oppose the
anti-SLAPP motion and the attorneys’ fee award.” There are
two problems with this argument. First, our review of an order
granting summary adjudication is limited to “the facts [in]
the record [that was] before the trial court when it ruled on
that motion,” and we are prohibited from considering evidence
or findings from the subsequent trial of Mireskandari’s other
causes of action. (State Dept. of Health Services v. Superior
Court (2003) 31 Cal.4th 1026, 1034–1035, italics added; Jackson
v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1165, fn. 5.)
Second, as Mireskandari correctly argues, given the jury’s finding
that defendants did not intentionally breach their fiduciary duty
by knowingly concealing the risk of an anti-SLAPP motion, we
cannot presume the jury would have awarded no damages if it
had been presented with the alternative claim that defendants
were merely negligent in failing to advise Mireskandari of this
risk. 4 (See Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1091
4 We note the verdict form directed the jury to answer
the mitigation question only if it found one of the defendants
liable for breach of fiduciary duty on one or more of the theories
Mireskandari asserted. Because the jury found only EWP liable
24
(Knutson) [“Because legal malpractice involves negligent
conduct on the part of an attorney [citation], causation for
legal malpractice is analyzed differently than causation for
the intentional torts of fraudulent concealment and intentional
breach of fiduciary duty.”].)
Mireskandari asserted a viable claim for professional
negligence based on defendants’ alleged failure to advise him
of California’s anti-SLAPP statute before he filed his lawsuit
in California. Defendants indirectly challenged the claim
on a ground that does not support a judgment in their favor.
They failed to meet their initial burden. The trial court
erred in granting summary adjudication.
2. The Trial Court Properly Barred Mireskandari’s
Speculative Claim for Damages Related to the
SDT Disciplinary Proceeding
Mireskandari contends the trial court erroneously
precluded him from introducing evidence to the jury regarding
alleged damages resulting from the SDT proceeding. He says
on the theory that it “assembl[ed] . . . a team of lawyers to
act against him,” the jury’s mitigation finding was necessarily
limited to that theory and it can have no preclusive effect
on Mireskandari’s claim that defendants were professionally
negligent in failing to advise him about the anti-SLAPP statute.
(Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1048–1049
[collateral estoppel applies only when “issue [in controversy]
is identical to an issue decided in a prior proceeding”; findings
had no collateral estoppel effect where issue in tort action was
whether salesperson misappropriated manufacturer’s invention,
while issue in salesperson’s subsequent malicious prosecution
action was whether manufacturer had reasonable cause to
believe salesperson misappropriated invention].)
25
his “first and foremost goal” in retaining defendants to bring a
lawsuit against the Daily Mail “was to obtain evidence through
discovery of malfeasance by the SRA.” “[T]hat evidence,”
Mireskandari posits, “would then show the SRA investigation
was a predetermined sham based on improper motives, and his
legal career could be saved.” He confirms this “damages theory
was a crucial underpinning of his cause of action for legal
malpractice and breach of fiduciary duty.”
After a nine-day hearing under Evidence Code section 402,
the trial court entered an order barring Mireskandari from
presenting the theory to the jury, concluding his proffered
evidence of causation was “too speculative” to support a verdict
in his favor. We agree with the trial court’s assessment of
this threshold legal issue. (See, e.g., Sargon Enterprises, Inc.
v. University of Southern California (2012) 55 Cal.4th 747, 753
[“the trial court has the duty to act as a ‘gatekeeper’ to exclude
speculative expert testimony”].)
“The elements of a cause of action for breach of fiduciary
duty are: (1) existence of a fiduciary duty; (2) breach of the
fiduciary duty; and (3) damage proximately caused by the
breach.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070,
1086.) A claim for attorney professional negligence likewise
requires proof of “a proximate causal connection between
the breach and the resulting injury.” (Martorana v. Marlin
& Saltzman (2009) 175 Cal.App.4th 685, 693.) “The purpose of
the causation requirement is to safeguard against speculative
and conjectural claims and to ensure that damages awarded
for the attorney’s malpractice actually have been caused by
the malpractice.” (Knutson, supra, 25 Cal.App.5th at p. 1091.)
“A plaintiff cannot recover damages based upon speculation
26
or even a mere possibility that the wrongful conduct of the
defendant caused the harm.” (Williams v. Wraxall (1995)
33 Cal.App.4th 120, 133 (Williams).)
Proximate cause has “two aspects.” (State Dept. of State
Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352 (State
Hospitals).) One is cause in fact, also referred to as “ ‘but for’
causation.” (Ibid.) “ ‘ “An act is a cause in fact if it is a necessary
antecedent of an event.” ’ ” (Ibid.) “The second aspect of
proximate cause ‘focuses on public policy considerations.
Because the purported [factual] causes of an event may be traced
back to the dawn of humanity, the law has imposed additional
“limitations on liability other than simple causality.” ’ ” (Id. at
p. 353.) One of those limitations is “ ‘ “the degree of connection
between the conduct and the injury.” ’ ” (Ibid.)
“ ‘Ordinarily, proximate cause is a question of fact which
cannot be decided as a matter of law from the allegations of
a complaint. . . . Nevertheless, where the facts are such that
the only reasonable conclusion is an absence of causation,
the question is one of law.’ ” (State Hospitals, supra, 61 Cal.4th
at p. 353.) Thus, where the evidence shows the connection
between the defendant’s conduct and the plaintiff’s alleged injury
is “too remote,” the court must remove the causation question
from the jury and rule on the claim as a matter of law. (Shih
v. Starbucks Corp. (2020) 53 Cal.App.5th 1063, 1071; Modisette
v. Apple Inc. (2018) 30 Cal.App.5th 136, 154–155 [proximate
causation must be decided as a “question of law” where the
evidence shows the “gap” between the defendant’s conduct
and the plaintiff’s injuries is “too great for the tort system
to hold [the defendant] responsible”].)
27
Like other elements of a claim, a plaintiff must prove
causation with “ ‘substantial’ evidence, and evidence ‘which
leaves the determination of . . . essential facts in the realm
of mere speculation and conjecture is insufficient.’ ” (Leslie G.
v. Perry & Associates (1996) 43 Cal.App.4th 472, 484.) A “mere
possibility of . . . causation is not enough; and when the matter
remains one of pure speculation or conjecture, . . . it becomes
the duty of the court to determine the issue in favor of the
defendant as a matter of law.” (Ibid., citing Prosser & Keeton,
Torts (5th ed. 1984) § 41, p. 269; see Reese v. Smith (1937)
9 Cal.2d 324, 328 [a judgment cannot be based on guesses
or conjecture]; see also Kumaraperu v. Feldsted (2015) 237
Cal.App.4th 60, 68 [“ ‘As a matter of practical necessity,
legal responsibility must be limited to those causes which
are so close to the result, or of such significance as causes,
that the law is justified in making the defendant pay.’ ”].)
In his proffer of evidence in advance of the Evidence Code
section 402 hearing, Mireskandari proposed to prove defendants’
conduct caused his alleged damages as follows:
“One of the categories of actual damages
Plaintiff claims to have suffered as a result of
the breaches of fiduciary duty by [defendants]
is that, but for the failure of [defendants] to
advise Plaintiff that (1) he would be unable
to obtain early discovery in the Daily Mail case
if the case were filed in California, and (2) to
advise him that he should file the action in
another state without an anti-SLAPP statute in
which there would be jurisdiction, specifically,
Virginia, Plaintiff could have filed the action
28
in Virginia, obtained early discovery, and
discovered certain facts that would have caused
the proceeding against him before the Solicitors
Disciplinary Tribunal to be ultimately stayed.
Were that to have occurred, Plaintiff would not
have been struck from the rolls of Solicitors.
Plaintiff therefore would have been able to
continue his law practice, from 2012 through
retirement; would not have lost the valuable
real properties in the UK which the SRA
seized; would have been able to collect Dean
& Dean receivables; and would not have been
compelled to continue to pay attorneys in the
UK to defend the SDT proceeding and related
matters. Further, had the evidence that was
discoverable been discovered at the early stage
of the Daily Mail case, and presented to the
SDT in May or June of 2012, that evidence
would have avoided the assessment of $2.2
million in costs and fees against him. Such
avoidance would have meant that he would
not have been forced into bankruptcy and as
a result, would not have lost assets including
valuable contract rights.”
To demonstrate he could marshal sufficient evidence
of causation to present this damages claim to the jury,
Mireskandari offered the testimony of nine witnesses, including
four percipient witnesses who testified about purported
misconduct in the SRA’s investigation, and two expert witnesses,
Judge Stanley P. Klein and Andrew Hopper QC, who testified
29
about Virginia litigation procedures and SDT disciplinary
proceedings in the U.K.
Mireskandari’s appellate briefs largely fail to discuss the
witnesses’ testimony and the trial court’s related findings. The
briefs make only an indirect reference to Judge Klein, referring
to him as “a retired judge from Virginia who literally wrote the
book on civil procedure there,” without discussing the substance
of Judge Klein’s testimony. Similarly, Mireskandari’s briefs refer
to Hopper as a former lawyer for the SDT who “helped draft its
rules,” and obliquely imply Hopper offered testimony supporting
Mireskandari’s damages claim, but there is no discussion about
the substance or particulars of Hopper’s testimony. Nor are
record citations provided to support whatever point Mireskandari
intended to make about these experts’ testimony. This approach
to briefing is plainly insufficient to meet Mireskandari’s
affirmative burden as the appellant to demonstrate prejudicial
error. (Green v. City of Los Angeles (1974) 40 Cal.App.3d 819,
835 [“An appellate court is not required to search the record to
determine whether or not the record supports appellant[’s] claim
of error. It is the duty of counsel to refer the reviewing court to
the portions of the record which support appellant[’s] position.”];
Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115
[“If no citation ‘is furnished on a particular point, the court may
treat it as [forfeited].’ ”].)
Among other things that Mireskandari fails to address,
the record shows Hopper previously consulted with Mireskandari
about the SDT proceeding that resulted in the revocation of
Mireskandari’s solicitor’s license. Hopper testified he had
documented a number of “deficiencies” in the way Mireskandari
conducted his defense in that proceeding, implicitly undermining
30
Mireskandari’s claim that defendants’ conduct was the cause
in fact of the SDT’s revocation decision. Shortly after Hopper’s
testimony, Mireskandari withdrew his claim that but for
defendants’ conduct, he would not have been struck from the
solicitors rolls, and, as the trial court memorialized in its order,
“waived his right to claim any and all damages resulting from
the loss of his legal practice.” On appeal, Mireskandari simply
ignores this waiver, arguing he should have been allowed to
prove to the jury that, but for defendants’ conduct, he would have
obtained “the discovery necessary to save his solicitor’s license.”
Plainly the trial court did not err by accepting an express waiver,
made, as the court emphasized and the transcript reflects, “on
the record and in Mireskandari’s presence.” (See Nevada County
Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779 [if
a judgment or order is in favor of a party’s affirmative position
he is not aggrieved and cannot object on appeal].)
After Mireskandari’s waiver, he proceeded on the theory
that, but for defendants’ alleged breach, the SDT would have
considered new evidence of the SRA’s purported misconduct
and, as a result, the SDT would have disallowed the assessment
of costs and fees against Mireskandari in that proceeding.
With respect to that theory, the trial court found Judge
Klein’s testimony supported no more than speculation about
Mireskandari’s prospects of obtaining discovery through his
hypothetical Virginia case in time to present it in the SDT
proceeding. As the court explained, the testimony offered
“no way for a reasonable jury to know whether the hypothetical
case posed by Mireskandari would have been a middle of the
bell curve case for Fairfax County,” especially given Judge Klein’s
admission that Virginia judges exercise broad discretionary
31
powers over the discovery process. Mireskandari makes no
effort to explain why this finding constituted reversible error.
Even if the discovery could have been obtained in time,
the trial court found Hopper’s testimony supported no more
than speculation about what the SDT would have done in
response to the discovery. As with the Virginia discovery process,
Hopper confirmed the SDT rules vest the tribunal with “wide
discretionary powers” regarding the costs to be paid by a
party in a solicitor’s disciplinary proceeding. Indeed, Hopper
acknowledged no case had ever been decided that presented facts
similar to those that Mireskandari asked him to assume, and
thus his opinion about how the tribunal would have exercised
its discretion based on those assumed facts necessarily was,
as he put it, “conjectural.” Mireskandari ignores this testimony
and the trial court’s related finding. His discussion of Hopper’s
testimony is limited to repeating the assertion that, but for
defendants’ conduct, he could have presented evidence to the
SDT before it concluded his proceeding, and claiming, without
supporting record citations, that Hopper “testified to exactly
that.”
Beyond the two experts’ testimony, the trial court found
Mireskandari’s evidence about the SRA’s purported misconduct,
and Hopper’s assumptions incorporating that evidence, gave way
to additional layers of speculation about how the SDT might
exercise its discretionary authority to impose costs and fees.
We need not discuss this evidence or the trial court’s detailed
findings about it. Just as Mireskandari largely ignores the
substance and particulars of the experts’ testimony, he entirely
fails to address this other evidence in his appellate briefs.
This sweeping abdication of his duty to contend with evidence
32
and findings facially supporting the trial court’s order constitutes
a waiver and forfeits Mireskandari’s claim of error. (See
Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham)
[“ ‘A judgment or order of the lower court is presumed correct.
All intendments and presumptions are indulged to support it
on matters as to which the record is silent, and error must be
affirmatively shown.’ ”]; Reyes v. Kosha (1998) 65 Cal.App.4th
451, 466, fn. 6 [Even on de novo review, “[i]ssues not raised
in an appellant’s brief are deemed waived or abandoned.”].)
Simply put, Mireskandari does not present a record
affirmatively demonstrating prejudicial error. Instead, he baldly
asserts, in conclusory fashion, that his damages theory regarding
the outcome of the hypothetical Virginia litigation and the SDT
proceeding was a question of fact for the jury. But that assertion
begs the question and entirely ignores the trial court’s reasons
for taking the issue from the jury. As the trial court correctly
assessed, causation is a jury question only if there is sufficient
evidence to allow a reasonable jury to reach a conclusion without
resorting to speculation. (See Knutson, supra, 25 Cal.App.5th
at p. 1094; Williams, supra, 33 Cal.App.4th at p. 133.) Here,
as discussed, the trial court identified substantive deficiencies
in the testimony of Mireskandari’s two experts that rendered
critical factual questions related to his damages theory
“inherently unknowable” and, as a consequence, “speculative
by a reasonable jury.” Mireskandari does not address these
deficiencies and, thus, utterly fails to meet his burden on appeal.
(See EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 775
[appellants forfeited claim of error where they did “not support
that claim by way of argument, discussion, analysis, or citation
to the record”].)
33
Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953(Piscitelli) and Blanks v. Seyfarth Shaw LLP (2009) 171
Cal.App.4th 336 do not help Mireskandari. In both cases,
the reviewing courts recognized that, in a legal malpractice
action, whether a court or jury decides the issue of causation
“does not turn on the identity or expertise of the trier of fact,
but whether the issues are predominately questions of fact or
law.” (Piscitelli, at p. 970; Blanks, at p. 358.) But the problem
with Mireskandari’s theory is not that a jury lacks sufficient
expertise to reasonably weigh the evidence and determine,
more likely than not, what would have happened in a
hypothetical Virginia case or how that would have affected
the pending SDT proceeding. The problem, as his own experts
tacitly acknowledged and the trial court determined, is that
his proffered evidence would leave a jury to speculate about how
a Virginia court or the SDT might exercise its broad discretionary
powers at each link in Mireskandari’s assumed chain of
causation. 5 (See, e.g., State Hospitals, supra, 61 Cal.4th at p. 357
5 Relying on Piscitelli, Mireskandari argues the trial court
merely needed to “adequately instruct the jury on the relevant
law so that the jury [could] reasonably determine the questions
of fact.” (Cf. Piscitelli, supra, 87 Cal.App.4th at p. 971 [issues
were not “so complex and numerous that a lay jury, properly
instructed, could not comprehend them”].) The record shows the
trial court invited Mireskandari to submit proposed instructions
for the jury’s evaluation of the hypothetical Virginia case and
the SDT proceeding. Mireskandari neglected to submit any
jury instructions regarding the Virginia case. With respect
to the SDT proceeding, the trial court found Mireskandari’s
proposed instructions would not provide adequate guidance to
the jury because, among other things, they “fail[ed] to address
the factors to be evaluated by the SDT, the weight to be given
34
[long series of “discretionary” determinations rendered theory
of causation “conjectural” as a matter of law].)
Mireskandari has failed to present a record or argument
affirmatively demonstrating the trial court erred. (See Jameson
v. Desta (2018) 5 Cal.5th 594, 608–609; Denham, supra, 2 Cal.3d
at p. 564.)
3. The Trial Court Properly Enforced the Attorney-
Client Privilege
In an earlier writ proceeding involving these parties,
we addressed whether “the attorney-client privilege applies to
intrafirm communications between attorneys concerning disputes
with a current client, when that client later sues the firm for
malpractice.” (Edwards Wildman Palmer LLP v. Superior Court
(2014) 231 Cal.App.4th 1214, 1219 (EWP).) We concluded that
“when an attorney representing a current client seeks legal
advice from an in-house attorney concerning a dispute with
the client, the attorney-client privilege may apply to their
confidential communications,” and we rejected the trial court’s
adoption of the so-called “ ‘fiduciary’ ” and “ ‘current client’ ”
to those factors, and/or any of the myriad of other norms or
principles that might inevitably play a role in the exercise of
the substantial discretion afforded to a specialized disciplinary
panel like the SDT.” Mireskandari does not mention the court’s
invitation or his proposed jury instructions in his appellate
briefs, and he fails to explain why the court’s finding constitutes
reversible error. Again, Mireskandari has forfeited the issue.
(See Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [“ ‘This
court is not inclined to act as counsel for him or any appellant
and furnish a legal argument as to how the trial court’s rulings
in this regard constituted an abuse of discretion’ [citation],
or a mistake of law.”].)
35
exceptions to the attorney-client privilege, holding “courts are
not at liberty to create implied exceptions to the attorney-client
privilege” under California law. (Id. at p. 1220.) We thus
directed the trial court to vacate its order compelling defendants
to disclose communications between Shelton and EWP’s general
counsel, Swope, and remanded the matter to the trial court for
consideration of factual questions that might affect application
of the privilege. (Id. at pp. 1236–1237; see also id. at pp. 1235–
1236 [“When the evidence conflicts, whether the attorney-client
privilege applies to a particular communication is a question
of fact.”].)
In rejecting the fiduciary and current client exceptions to
the privilege, we acknowledged that “a law firm’s representation
of itself, or one of its partners, in regard to a dispute or a
threatened claim by a current client, may raise thorny ethical
issues.” (EWP, supra, 231 Cal.App.4th at p. 1233.) We reasoned,
however, that violation of the Rules of Professional Conduct
would properly subject the attorney to discipline, but “nothing
in the Evidence Code suggests that a potential or actual conflict
of interest . . . abrogates the attorney-client privilege.” (EWP,
at p. 1233; see also id. at p. 1231 [“The area of privilege is ‘one
of the few instances where the Evidence Code precludes the
courts from elaborating upon the statutory scheme.’ ”].) And
we noted, as “a practical matter, it is not a foregone conclusion
that an attorney’s consultation with in-house counsel in regard
to a client dispute will always be adverse to the client.” (Id. at
p. 1233.) This is because the “attorney’s and client’s interests
are likely to dovetail insofar as the attorney seeks to resolve
the dispute to the client’s satisfaction, or determine through
consultation with counsel what his or her ethical and professional
36
responsibilities are in order to comply with them.” (Id. at
pp. 1233–1234.)
Regarding the factual issues left for the trial court’s
consideration, we explained “the privilege will attach only when
a genuine attorney-client relationship exists” between in-house
counsel and a law firm’s attorneys or the firm itself. (EWP,
supra, 231 Cal.App.4th at p. 1234.) To aid the trial court, we
suggested the following factors articulated by the Massachusetts
Supreme Court in RFF Family Partnership, LP v. Burns &
Levinson, LLP (2013) 991 N.E.2d 1066 provided a “helpful
template” for making this determination: “(1) the law firm
must have designated, either formally or informally, an attorney
or attorneys within the firm to represent the firm as in-house
or ethics counsel, so that there is an attorney-client relationship
between in-house counsel and the firm when the consultation
occurs; (2) where a current outside client has threatened
litigation against the law firm, the in-house counsel must
not have performed any work on the particular client matter
or a substantially related matter; (3) the time spent on the
in-house communications may not have been billed to the client;
and (4) the communications must have been made in confidence
and kept confidential.” (EWP, at pp. 1234–1235, citing RFF,
at pp. 1068, 1080.) However, we made clear that these “factors
are not prerequisites to establishment of an attorney-client
relationship under California law,” and emphasized they are only
“among the factors that a trial court may analyze in determining
whether an actual attorney-client relationship existed.” (EWP,
at p. 1235, italics added.)
After remand, the trial court appointed a discovery referee
for the limited purpose of determining whether a genuine
37
attorney-client relationship existed between defendants and
Swope. The referee consulted with the parties, set a hearing,
and received testimony from Swope. Based on the evidence
presented, the referee found defendants consulted Swope in his
capacity as the firm’s general counsel regarding Mireskandari’s
complaints about the firm’s handling of the Daily Mail matter,
and Swope provided legal advice to defendants in connection
with email communications to Mireskandari, but Swope “did
not review the legal strategies being suggested by the litigation
team to [Mireskandari] in the Daily Mail matter nor did [he]
suggest legal strategies for that underlying matter.” Based on
the referee’s report, the trial court found a “genuine attorney-
client relationship existed between Mr. Swope on the one hand
and Ms. Shelton . . . and the firm in general on the other.”
Mireskandari does not dispute that the evidence presented
to the referee was sufficient to sustain these findings.
Nevertheless, Mireskandari argues Shelton’s subsequent
trial testimony conclusively established there was not a genuine
attorney-client relationship between defendants and Swope.
He points to the following exchange, which he says proves
Swope transgressed the second RFF factor by performing work
on the Daily Mail case:
Mireskandari’s counsel: “[Swope’s] role in this
particular case was as the general counsel
protecting the interests of Edwards Wildman
Palmer?”
Shelton: “Yes, and that also includes
advancing the interests of our clients. I have
38
every confidence that [Swope] was working
in the interest of Mr. Mireskandari.” 6
Contrary to Mireskandari’s premise, there is nothing
necessarily inconsistent between Shelton’s testimony and
the discovery referee’s finding that Swope did not suggest legal
strategies for the Daily Mail matter. As we explained in EWP,
when an attorney consults in-house counsel about a dispute with
a client, the “attorney’s and client’s interests are likely to dovetail
insofar as the attorney seeks to resolve the dispute to the client’s
satisfaction.” (EWP, supra, 231 Cal.App.4th at pp. 1233–1234,
italics added.) Consistent with the notion that a client and
his attorneys will likely have compatible interests in resolving
their dispute, Shelton explained that while Swope represented
the firm, the “firm was representing Mr. Mireskandari” and,
as such, she understood Swope’s work also to be in
Mireskandari’s interests. Because the issue implicates a factual
6 Mireskandari also claims Shelton admitted she
“ ‘collaborated’ ” with Swope on an email to Mireskandari
“ ‘strongly recommend[ing]’ that he ‘explor[e] settlement with
the Student Clearinghouse.’ ” Shelton did testify she collaborated
with Swope on an email to Mireskandari that they “didn’t charge
him for,” but there is no reference to exploring settlement with
the NSC in the cited portion of the transcript or surrounding
testimony. On the contrary, to the extent the transcript
reveals anything about the text of the email, it shows the
email addressed defendants’ concern that “ ‘the attorney-client
relationship [with Mireskandari] ha[d] broken down’ ”—a matter
plainly within the ambit of Swope’s attorney-client relationship
with defendants. (See EWP, supra, 231 Cal.App.4th at p. 1237
[evidence Shelton sought legal advice from Swope about
Mireskandari representation would establish existence
of an attorney-client relationship].)
39
dispute about the existence of an attorney-client relationship,
we must construe the evidence in the light most favorable to
the trial court’s finding, drawing all reasonable inferences to
support it. (See HLC Properties, Ltd. v. Superior Court (2005)
35 Cal.4th 54, 60; EWP, at pp. 1235–1236.)
But even if we construed Shelton’s testimony as evidence
that Swope performed work on Mireskandari’s matter, that
still would not be sufficient to disturb the trial court’s finding.
Contrary to Mireskandari’s other premise, we explained in EWP
that the RFF factors are a “helpful template,” but they “are not
prerequisites to establishment of an attorney-client relationship
under California law.” (EWP, supra, 231 Cal.App.4th at p. 1235,
italics added.) Other factors, such as Swope’s independent role as
EWP’s general counsel, the confidentiality of his communications
with defendants, and the fact that Mireskandari was not charged
for Swope’s work, all supported the court’s finding that a genuine
attorney-client relationship existed. Mireskandari cannot satisfy
his burden as appellant by relying on a snip of testimony having
dubious relevance to a single factor, while ignoring all the other
evidence the discovery referee and trial court relied upon to find
a genuine attorney-client relationship existed.
Apart from Shelton’s testimony, Mireskandari contends
the jury’s special verdict finding that defendants “ ‘assembl[ed]
a team to act against [Mireskandari]’ ” also conclusively
establishes there was not a genuine attorney-client relationship
with Swope. He maintains this finding “clearly indicates that
the law firm labored under a conflict of interest” and “therefore
could not properly invoke the attorney-client privilege” under
our opinion in EWP. It is a curious argument, given that the
crux of our holding rejecting the “fiduciary” and “current client”
40
exceptions in EWP was that “nothing in the Evidence Code
suggests that a potential or actual conflict of interest . . .
abrogates the attorney-client privilege.” (EWP, supra, 231
Cal.App.4th at p. 1233, italics added.)
In any event, because this isolated special verdict finding
reflects only the jury’s interpretation of conflicting evidence on
a single question unrelated to the existence of an attorney-client
relationship, we fail to see why it compels us to disturb the trial
court’s express factual finding that such a relationship existed.
“ ‘When the facts, or reasonable inferences from the facts,
shown in support of or in opposition to the claim of privilege are
in conflict, the determination of whether the evidence supports
one conclusion or the other is for the trial court, and a reviewing
court may not disturb such finding if there is any substantial
evidence to support it.’ ” (People v. Gionis (1995) 9 Cal.4th
1196, 1208, italics added.) For his part, Mireskandari fails
to acknowledge the applicable standard of review, or to present
a convincing argument, supported by citations to evidence
underlying the jury’s finding, to demonstrate reversal is
warranted. He has not satisfied his burden on appeal.
4. The Trial Court Reasonably Denied Leave to Amend
to Reinstate a Prayer for Punitive Damages
A plaintiff may recover punitive damages in an action
for breach of fiduciary duty against an attorney upon proof
“ ‘the defendant’s acts are reprehensible, fraudulent or in blatant
violation of law or policy.’ ” (Tomaselli v. Transamerica Ins. Co.
(1994) 25 Cal.App.4th 1269, 1287; see Civ. Code, § 3294, subd. (a)
[authorizing punitive damages in an action for breach of an
obligation other than a contract upon proof “by clear and
41
convincing evidence that the defendant has been guilty of
oppression, fraud, or malice”].)
In his second amended complaint, Mireskandari sought
punitive damages based on allegations that defendants used his
retainer payment in violation of the terms of their engagement
agreement and that defendants misrepresented Shelton’s
qualifications. On November 20, 2014, the trial court granted
defendants’ motion to strike the prayer for punitive damages. 7
Mireskandari does not challenge the ruling.
On August 9, 2018, Mireskandari filed a motion for leave
to file a third amended complaint reinstating his punitive
damages request. 8 The trial court denied the motion, and
Mireskandari challenges that ruling on appeal. He asserts
leave to amend was warranted based on “additional facts” he
discovered regarding “the debacle with Swope and privilege,”
which he maintains “amply demonstrated that Shelton had
flagrantly misrepresented everything from her credentials to
7 Mireskandari maintains the court “expressly left open
the potential for Plaintiff to reinstate his prayer [for punitive
damages] upon obtaining additional information through
discovery,” but the only record he cites for the assertion is his
ex parte application for leave to file a third amended complaint.
The order granting defendants’ motion to strike is not at the
page number listed in the index to Mireskandari’s appendix,
and the court is unable to locate the order in his more than
9,700-page appendix.
8 Mireskandari does not appear to have included his motion
in the appendix. He included an ex parte application for leave
to file a third amended complaint, but even that record was not
located in the appendix at the page number listed in his index.
42
Plaintiff’s chances of prevailing.” He does not provide record
citations to support any of this.
The record cited by defendants shows the trial court denied
leave to amend because Mireskandari had delayed almost four
years in bringing his motion and he failed to identify “anything
new and different” to justify reinstating punitive damages
on the eve of trial. “The law is well settled that a long deferred
presentation of [a] proposed amendment without a showing of
excuse for the delay is itself a significant factor to uphold the trial
court’s denial of the amendment.” (Bedolla v. Logan & Frazer
(1975) 52 Cal.App.3d 118, 136, citing Moss Estate Co. v. Adler
(1953) 41 Cal.2d 581, 586; Roemer v. Retail Credit Co. (1975)
44 Cal.App.3d 926, 939–940 [“The law is also clear that even
if a good amendment is proposed in proper form, unwarranted
delay in presenting it may—of itself—be a valid reason for
denial.”]; see also Eng v. Brown (2018) 21 Cal.App.5th 675, 707;
Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005)
130 Cal.App.4th 1078, 1097.) As Mireskandari fails to present
a record affirmatively demonstrating error, we must presume
the trial court exercised its discretion in accordance with this
well settled law. 9 (See Denham, supra, 2 Cal.3d at p. 564.)
9 In his reply brief, Mireskandari complains that defendants
did not explain in their respondents’ brief “what delay they are
talking about or why it was unwarranted.” He apparently forgets
that, as respondents, defendants have no such burden on appeal.
(See Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224,
226 [appellant bears the burden to affirmatively demonstrate
error, regardless of whether respondent files a brief].) To the
extent he suggests discovery disputes justified his delay, he again
fails to provide citations to the record supporting the assertion.
His statement that he “is not aware of any ‘unwarranted delay’ ”
43
5. Mireskandari Fails to Demonstrate Prejudice from
the Admission of Evidence Regarding His Financial
Condition
Mireskandari contends the trial court erred by allowing the
admission of evidence regarding his ability to repay the attorney
fees that others paid on his behalf. While he acknowledges the
trial court “ultimately recognized,” consistent with his position,
that the collateral source rule precluded defendants from arguing
he should not be allowed to collect damages for fees he did not
personally pay, he nevertheless argues admission of the evidence
was highly prejudicial because the jury awarded him no damages
for EWP’s breach of fiduciary duty. 10 We need not decide
is insufficient on its face, and refuted by the trial court’s
explanation of its reasons for denying leave to amend.
10 While Mireskandari claims he made repeated objections
to the introduction of evidence regarding his financial condition,
he fails to provide proper record citations to support the
assertion. Instead, in violation of rule 8.204, he appears to
cite pages from daily transcripts that cannot be readily cross-
referenced with the page numbers in the official reporter’s
transcripts. (See Del Real v. City of Riverside (2002) 95
Cal.App.4th 761, 768 (Del Real) [“The appellate court is not
required to search the record on its own seeking error.”]; see also
Evid. Code, § 353, subd. (a) [a verdict shall not be set aside due
to the erroneous admission of evidence unless there “appears
of record an objection to or a motion to exclude or to strike the
evidence that was timely made and so stated as to make clear
the specific ground of the objection or motion”].)
In response to our letter notifying Mireskandari and his
appellate counsel we were considering sanctions for this and
other rule violations (rule 8.276(d)), his counsel declared the
improper citations were due to the court reporter transmitting
44
whether the trial court erred in admitting the evidence, as
Mireskandari has failed to present a record demonstrating
the purported error was prejudicial.
“A judgment will not be set aside based on the erroneous
admission of evidence unless ‘the reviewing court is convinced
after an examination of the entire case, including the evidence,
that it is reasonably probable a result more favorable to
the appellant would have been reached absent the error.’ ”
(Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th
1599, 1616; Evid. Code, § 353, subd. (b).) Prejudice “is never
presumed but must be affirmatively demonstrated by the
appellant.” (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841,
853–854 (Brokopp).) To meet this burden, the appellant must
show that, considering the entire record, it is reasonably probable
the jury would have reached a result more favorable to the
appellant absent the error. (Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 800.)
electronic copies of the reporter’s transcripts that were separated
by date “without proper cover pages or volume numbers.” While
this may explain why counsel failed to include volume numbers
in Mireskandari’s transcript citations, it does not explain why
many of the citations (including all the citations in this section
of his opening brief) are to daily transcript page numbers,
rather than to page numbers in the official reporter’s transcripts.
Defendants posit that Mireskandari simply “cut and pasted
arguments from his post-trial motion without bothering to
change the daily transcript citations in it”—a proposition borne
out by comparing Mireskandari’s post-trial motions to identical
sections of his opening brief bearing the same daily transcript
citations.
45
Mireskandari contends the “jury’s verdict here strongly
suggests that it was prejudicially influenced by the improperly
admitted evidence, as [the jury] strangely found a breach but
awarded no damages.” When considered in the context of the
entire record, the verdict is hardly strange at all.
Critically, Mireskandari’s contention fails to acknowledge
the jury categorically rejected his breach of fiduciary duty claim
against Shelton and, with respect to EWP, it rejected four of
the five theories Mireskandari advanced. The jury found liability
against EWP on a single charge—that EWP knowingly acted
against Mireskandari’s interests in connection with the
“assembling of a team of lawyers to act against him.” As for
all other theories—that defendants misrepresented Shelton’s
qualifications, failed to advise Mireskandari about the anti-
SLAPP statute, failed to disclose malpractice, and abandoned
him in the midst of the Daily Mail case—the jury found
defendants did not breach their fiduciary duties to Mireskandari.
In view of these findings, Mireskandari cannot establish
prejudice simply by pointing to the jury’s decision to award
no damages and speculating that it resulted from the admission
of negative evidence about his financial condition. Rather,
at a minimum he must show there was evidence to persuade
the jury that he was entitled to damages for whatever injury
he purportedly sustained due to EWP assembling a team of
lawyers to act against him. In his briefs, Mireskandari fails
even to identify an injury he suffered due to this conduct,
let alone to cite evidence in the record connecting EWP’s
breach to his purported damages. (See Moss v. Stubbs (1931)
111 Cal.App. 359, 370 [to establish prejudice, the appellant
46
“must bring before the court sufficient evidence to show that
[absent error] there might have been a finding in his favor”].)
Our review of his counsel’s closing argument to the jury
likewise fails to reveal what damages Mireskandari claimed
to have suffered due to EWP assembling a team of lawyers
to act against him. In explaining the theory, Mireskandari’s
counsel emphasized Swope and others at EWP were
“ghostwriting” emails for Shelton after the attorney-client
relationship began to deteriorate and this, counsel argued,
proved defendants were “communicating with the client in
ways that protect[ed] their own interest and not the client’s”
in breach of their fiduciary duty. But when it came time to
discuss Mireskandari’s damages, the claim that emails had
been ghostwritten for Shelton fell away, and counsel’s argument
focused exclusively on the theory that Mireskandari would not
have incurred successor counsel’s attorney fees to clean up the
“anti-SLAPP mess,” if “it hadn’t been for Ms. Shelton’s advice
and the law firm’s failure to tell [Mireskandari] about it.” As
the jury rejected Mireskandari’s claims that defendants failed to
advise him about the anti-SLAPP statute and failed to disclose
their alleged malpractice, it is not surprising, given counsel’s
closing argument, that the jury declined to award Mireskandari
damages for the ghostwritten emails.
The apparent lack of damages evidence distinguishes
this case from Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725(Hrnjak). In Hrnjak, our Supreme Court concluded the trial
court’s erroneous admission of evidence that the plaintiff received
collateral source benefits, consisting of auto and disability
insurance payments, prejudicially affected the jury’s damages
award. (Id. at pp. 726–727, 734.) The plaintiff had sued for
47
personal injuries sustained when the defendants’ brakeless truck
struck his car from behind. The defendants conceded liability
for the collision and the only litigated issues were the nature
and extent of the plaintiff’s injuries sustained as a proximate
result of the collision and the damages to which he was entitled.
As the Hrnjak court recounted:
“Plaintiff’s testimony and the medical evidence
produced on his behalf indicated that the
impact of the collision threw him forward
and to the right and caused him to lose
consciousness temporarily; he suffered a severe
sprain to his back in the area of the lumbar
spine and a cerebral concussion; because of
these injuries, he experienced considerable
pain in his lower back and radiating pain in his
lower abdomen as well as dizziness and nausea;
his symptoms prevented him from engaging in
his occupation as a carpenter and cabinetmaker
during the three and a half years between
the accident and the trial and necessitated
his finding a new vocation which would involve
less driving, lifting, bending, and standing at
heights than carpentry requires; at the time
of the trial, plaintiff was in the process of
acquiring training as a typewriter repairman
from the State Department of Rehabilitation,
at which occupation his earnings would be
a maximum of $125 per week compared to
earnings of about $200 per week as a carpenter;
he would be required to wear a sacro-lumbar
48
back support for life, even in his new work; and
his out-of-pocket medical expenses as a result
of the accident amounted to more than $6,000.”
(Id. at p. 727.)
Notwithstanding this evidence, the jury awarded the
plaintiff only $6,100 on his $100,000 claim. (Hrnjak, supra,
4 Cal.3d at p. 728.) Addressing the probable prejudice from
the admission of collateral source evidence, our Supreme Court
explained: “Although liability was not challenged, the issue
of damages was sharply contested and the damage award was
small; thus ‘it is reasonably probable that a result more favorable
to [plaintiff] would have been reached in the absence of the
error.’ ” (Id. at p. 734.)
Unlike the plaintiff in Hrnjak, Mireskandari has cited
no evidence of what damages supposedly flowed from the
ghostwritten emails or anything else the jury may have
considered in finding EWP assembled a team of lawyers to
act against him. Thus, we have no way to determine whether
the issue of damages on this theory was “sharply contested”
and no evidence upon which to find it is reasonably probable
Mireskandari would have achieved a more favorable result
had evidence of his financial condition not been admitted.
(Cf. Hrnjak, supra, 4 Cal.3d at p. 734.) Mireskandari has not
affirmatively demonstrated prejudicial error. (See Nazari v.
Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1 [“While it is
the duty of the appellate court in reviewing the denial of a new
trial motion to review the entire record, on appeal it is manifestly
‘the duty of a party to support the arguments in its briefs by
appropriate reference to the record, which includes providing
49
exact page citations.’ ”]; Brokopp, supra, 71 Cal.App.3d at
pp. 853–854; Del Real, supra, 95 Cal.App.4th at p. 768.)
Mireskandari also fails to address other critical jury
findings that practically disprove the contention that evidence
of his financial condition may have underpinned the decision
to award him no damages for EWP’s breach of fiduciary duty.
The court instructed the jury that even if it decided defendants
were responsible for Mireskandari’s injuries, he still was “not
entitled to recover damages for harm that [defendants] proved
Mr. Mireskandari could have avoided with reasonable efforts
or expenditures.” Consistent with this instruction, the special
verdict form asked the jury to answer, upon a finding of liability
for breach of fiduciary duty, “Could Mr. Mireskandari have
reasonably avoided harm in any of the following categories
without undue risk of hardship?” For each and every category
of damages, the jury answered, “Yes.” While Mireskandari
characterizes the jury’s rejection of his damages claims as
“strange,” he makes no effort to explain how the jury could have
logically returned a verdict awarding him damages after finding
he could have reasonably avoided all the harm he supposedly
suffered. (See Green v. Smith (1968) 261 Cal.App.2d 392, 396
[Under the mitigation of damages doctrine, a “plaintiff cannot
be compensated for damages which he could have avoided
by reasonable effort or expenditures.”].) In view of the jury’s
mitigation findings, it is not at all probable that Mireskandari
would have achieved a more favorable result in the absence
of the claimed error.
50
6. The Trial Court Reasonably Denied Mireskandari’s
Motion for a New Trial
Mireskandari brought a motion for new trial on the
following grounds: (1) defense counsel and the trial court
improperly painted Mireskandari as a liar; (2) defense counsel
improperly insinuated that Mireskandari and his wife were
engaged in criminal conduct; (3) defense counsel’s “persistent”
misrepresentations and personal attacks cumulatively prejudiced
Mireskandari; (4) the trial court erroneously admitted evidence
of the SDT findings against Mireskandari; and (5) the trial court
erroneously precluded Mireskandari from testifying about a
hypothetical lawsuit in Virginia, but allowed defense counsel
to cross-examine him about it. He makes the same arguments in
his opening brief, copied almost (or, in some instances, entirely)
verbatim from his new trial motion. 11 Because he made virtually
no changes to arguments drafted before the trial court issued its
ruling, he does not address the court’s stated reasons for denying
his motion or make any effort to explain why the court’s decision
constitutes an abuse of discretion.
A party is entitled to a new trial when an irregularity in
the proceedings, or any order of the court or abuse of discretion,
“materially affect[s] the substantial rights of such party” and
prevents him from having a fair trial. (Code Civ. Proc., § 657(1).)
“ ‘ “The question whether, under all the circumstances, an
irregularity has materially affected substantial rights and
prevented a fair trial is addressed to the discretion of the
11 In some instances, including his entire argument about the
SDT findings, Mireskandari failed to update his record citations,
leaving citations to daily transcripts in place of required citations
to the official reporter’s transcripts.
51
trial court, which—having heard and seen the witnesses, and
having knowledge of circumstances which may not be reproduced
in the record—is in better position than the appellate court
to determine the effect.” ’ ” (Grant v. F. P. Lathrop Constr. Co.
(1978) 81 Cal.App.3d 790, 804 (Grant); Merralls v. Southern
Pacific Co. (1920) 182 Cal. 19, 23; Piercy v. Piercy (1906) 149
Cal. 163, 166.)
An appellant has a duty to make a “ ‘cognizable argument’ ”
on appeal as to why the trial court abused its discretion in
denying his new trial motion. (Hernandez v. First Student,
Inc. (2019) 37 Cal.App.5th 270, 277.) “Mere repetition of the
arguments made in support of the motion in the trial court
is not sufficient.” (Ibid., italics added.) “ ‘ “[A]n appealed
judgment is presumed correct, and appellant bears the burden
of overcoming the presumption of correctness.” ’ ” (Ibid.;
Engleman v. Malchow (1949) 91 Cal.App.2d 341, 344 [“Not only
is the order denying a new trial supported by all presumptions
of its correctness but the burden is upon appellant to show
affirmatively that an order of denial is prejudicially erroneous.”].)
The trial court denied Mireskandari’s motion for new
trial on the principal ground that he could not demonstrate the
claimed errors materially affected his substantial rights, because
the “verdict was based on lack of mitigation of damages” and
none of the claimed errors “affect[ed] the mitigation of damages”
finding. The court explained: “[T]hat was the Defense theory . . .
that Mr. Mireskandari was a raging bull. He was single-minded
in pursuing this . . . [a]nd despite the fact that he was repeatedly
told by how many different lawyers in how many different
contexts that this [claim] redefined the conventional notions
of long shot, despite the fact that he repeatedly was losing, that
52
he was a raging bull for whatever reason. [¶] . . . [¶] . . . [I]t was
apparent to me throughout this case that he was going to pursue
this through years and years and years, despite the odds, despite
the losses. . . . And the jury found that it wasn’t reasonable
to do that, that he could have cut his losses by, you know, going
back to England . . . do[ing] something other than pursue all
this litigation here in the U.S. [¶] . . . [So], even if it w[as] error
. . . I don’t see any way this could have changed the result.”
The record supports the court’s assessment. Mireskandari
and the “quarterback” of his U.S. legal team, Bocchieri,
formulated a plan for Mireskandari to file a lawsuit against
the Daily Mail in California before approaching defendants
to represent him. Defendants’ original strategy to avoid
First Amendment defenses had to be scrapped when the NSC
informed Mireskandari, contrary to representations he made
to defendants, that it did not have his law school records, thus
confirming those records had not been “unlawful[ly] hack[ed].”
Shelton testified she advised Mireskandari about the risks of
an anti-SLAPP motion before defendants filed the first amended
complaint on his behalf. Although she advised Mireskandari
that filing an amended complaint posed new risks under
the anti-SLAPP statute, Mireskandari instructed her to
“ ‘move forward.’ ” After the SDT issued its decision against
Mireskandari, his new counsel sent him a 43-page memorandum
emphasizing the need for “a viable exit strategy,” as it was
“highly likely” that the English judgment barred “all or
substantially all of the claims” against the Daily Mail. But
Mireskandari charged forward in spite of this advice too, filing
a second amended complaint with another new lawyer that drew
another anti-SLAPP motion. He filed a third amended complaint
53
in the district court, then voluntarily dismissed his federal action,
only to file a nearly identical state court action against the
Daily Mail. In the end, this court directed the trial court to
dismiss Mireskandari’s state court action under the anti-SLAPP
statute, citing many of the same reasons highlighted in the
43-page memorandum Mireskandari received from his attorney
more than two years earlier.
During deliberations, the jury asked about the mitigation
of damages question on the special verdict form. In response,
the trial court reread the mitigation of damages instruction
and stated that, under the avoidable consequences doctrine,
“a plaintiff may not recover damages he could have easily
avoided.” The court clarified that a “yes answer to a category
of claimed damages means that Mr. Mireskandari could have
easily avoided that category of claimed damages. A no answer
means that Mr. Mireskandari could not have easily avoided that
category of claimed damages.” With that clarification, the jury
returned a verdict unanimously finding Mireskandari could have
reasonably avoided each and every category of claimed damages.
Mireskandari does not mention, let alone address, the
evidence supporting the jury’s mitigation of damages finding.
He fails to acknowledge that the jury’s question accords with
the trial court’s assessment that the “verdict was based on lack
of mitigation of damages.” Having failed to “set forth, discuss,
and analyze all the evidence on that point, both favorable and
unfavorable,” he cannot fairly contest the trial court’s finding
that the claimed irregularities in the proceeding did not
materially affect his substantial rights. (Doe v. Roman Catholic
54
Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218;
Grant, supra, 81 Cal.App.3d at p. 804.) 12
7. Mireskandari’s Counsel Violated Rules Governing
the Appellant’s Appendix and Opening Brief,
But Extraordinary Circumstances Generated by
the Pandemic Make Sanctions Inappropriate
Rule 8.276 authorizes a Court of Appeal, on motion of a
party or its own motion, to impose sanctions on a party or an
attorney for committing an “unreasonable violation” of the rules
governing civil appeals. “Even if an appeal is neither frivolous
nor filed solely for delay,” the appellate court has independent
authority under this rule to sanction a party or the party’s
attorney who “ ‘has been guilty of any . . . unreasonable infraction
of the rules . . . as the circumstances of the case and the
discouragement of like conduct in the future may require.’ ”
(Jones v. Superior Court (1994) 26 Cal.App.4th 92, 96, fn.
omitted; Bryan v. Bank of Am. (2001) 86 Cal.App.4th 185, 194;
Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869,
884–885 (Alicia T.).)
With their respondents’ brief, defendants filed a motion
for the assessment of monetary sanctions in the amount of
12 Defendants (and the trial court) presented compelling
reasons to explain why none of the claimed irregularities
constituted legal error. Mireskandari fails to address these
points as well. In perhaps the most egregious example of this
abdication, Mireskandari contends the trial court “vouched
for defense counsel” and painted Mireskandari as “a liar,” but
he entirely fails to acknowledge that his counsel agreed to the
supposedly offending statement when the trial court proposed
it outside the jury’s presence.
55
at least $10,000, payable to the clerk of this court, against
Mireskandari and his appellate counsel, jointly and severally.
Defendants identified a number of rule violations in
Mireskandari’s opening brief and appellant’s appendix that,
defendants’ counsel declared, had “greatly increased the burden
imposed on [defendants] in responding to Mireskandari’s
appeal.” 13 Among other things, defendants cited the following
infractions: (1) the appendix includes appendices from two
earlier writ proceedings, spanning seven volumes and over
13 Defendants also moved for sanctions on the ground
that Mireskandari filed a frivolous appeal. In support of the
contention, they requested we take judicial notice of Virginia
court records showing Mireskandari filed a lawsuit against
the Daily Mail in Virginia after the verdict in this case; discovery
was stayed in that Virginia action; and the Virginia case was
ultimately dismissed for lack of personal jurisdiction. Because
this Virginia action was not part of the evidentiary record
when the trial court ruled on defendants’ motion for summary
adjudication or when the court considered Mireskandari’s
damages claims under Evidence Code section 402, it is not
relevant to any issue in this appeal. Moreover, as we explained,
Mireskandari’s professional negligence claim was based only
in part on his proposed hypothetical Virginia lawsuit. Given
the substantial attorney fees and sanctions he incurred litigating
the Daily Mail’s anti-SLAPP motion, the fact that this Virginia
lawsuit was dismissed does not conclusively prove Mireskandari
would not have achieved a more favorable outcome by declining
to file his lawsuit in California. Because the Virginia court
records are irrelevant, we decline to take judicial notice as
requested. (See Arabia v. BAC Home Loans Servicing, L.P.
(2012) 208 Cal.App.4th 462, 484, fn. 10.) We also do not find
Mireskandari’s appeal frivolous. (See In re Marriage of Flaherty
(1982) 31 Cal.3d 637, 650.)
56
4,000 pages, that are not separately indexed with descriptions
of their contents; (2) the documents in the appendix are arranged
in reverse chronological order, making the appendix remarkably
difficult to review; (3) several documents purportedly included
in the appendix are not located at the page number listed in
the index; (4) the index uses shorthand document descriptions,
such as “CONSOL-OPP-NewTrial,” “Admiss of SS ND Invoices
Memo,” “Filing Fees,” “SM Notice to Appear,” “MIL Renewal &
MIL ex parte,” that are not helpful for locating documents in
the appendix; (5) the appendix includes several documents that
were not part of the trial court record; (6) the appendix does
not include several documents necessary for the consideration
of issues raised in the appeal; (7) the opening brief does not
include the volume number for record citations; and (8) the
opening brief discusses documents or proceedings without
supporting record citations.
With respect to the need for sanctions to deter future
violations, defendants argued Mireskandari was likely to have
other business before this court, citing the fact that, before this
appeal, we had already filed four opinions in cases in which
Mireskandari had been a party. Defendants also emphasized
that Mireskandari’s lead appellate counsel—a certified appellate
specialist—had been involved in this case since 2019, having
previously appeared before this court in connection with two
earlier writ proceedings.
By letter we advised counsel for both sides that we were
considering the imposition of sanctions based on some of the rule
violations identified in defendants’ motion. (See rule 8.276(c).)
Our letter directed counsel to rules 8.124(d)(1), 8.144(b)(2)(C),
and 8.144(b)(5)(A) (appellant’s appendix must include a
57
chronological index listing each document in the appendix and
the volume and page number where the document first appears);
rule 8.124(b)(1)(B) (appellant must include any item that is
necessary for proper consideration of the issues and any item
that the appellant should reasonably assume the respondent
will rely upon); and rule 8.204(a)(1)(C) (appellate briefs must
support every reference to a matter in the record by a citation
to the volume and page number of the record where the matter
appears). 14
In response, Mireskandari’s appellate counsel
acknowledged the appendix and opening brief violated the
rules identified in our letter. While counsel expressed contrition
for “any inconvenience or frustration the identified problems may
have caused,” she maintained the violations were “inadvertent
and resulted from an unfortunate combination of receipt of a
record already replete with errors and strained staffing resources
due to the COVID-19 pandemic.” Thus, Mireskandari and
counsel opposed the motion for sanctions “on the basis that
the violations, although regrettable, were not willful, did not
prejudice [defendants], and were not unreasonable under the
extenuating circumstances.”
We will not recount counsel’s detailed explanation of
the “significant and unexpected obstacles” her office faced in
completing the appendix and drafting the opening brief, including
the unprecedent hardships the COVID-19 pandemic imposed on
14 We also ordered Mireskandari’s counsel to augment the
record with all documents filed in connection with the motion
for summary adjudication of the professional negligence claim.
(Rule 8.155.) Counsel augmented the record as ordered.
58
her office and staff. 15 We accept counsel’s explanation and
conclude the extraordinary circumstances her office encountered
militate against assessing sanctions in this instance. (Cf.
Alicia T., supra, 222 Cal.App.3d at pp. 885–886 [sanctions are
reserved for those instances when the court rules are “flagrantly”
15 One specific explanation, however, bears attention. With
respect to the reverse chronological arrangement of the index
and appendix, counsel notes the applicable rule provides only
that appendix documents must be “ ‘arranged chronologically’ ”
(rule 8.144(b)(2)(C)), but she emphasizes it “does not specifically
indicate in which direction the chronology should proceed.” This,
in our view, is not a reasonable reading of the rule and, in any
event, the decision to use a reverse chronology made little sense
in this case. Any practitioner who has read an appellate record
should recognize there is a practical reason the rules mandate
a chronological arrangement. A chronological arrangement
allows the reader to move from the end of one record to the
beginning of a subsequently-filed record—e.g., from motion,
to opposition, to reply, to ruling. Counsel’s use of a reverse
chronological arrangement requires the reader to retrace back
through a record, then back through the subsequently-filed
record, to find the beginning of that subsequently-filed record.
That process is especially time consuming when the appendix
spans over 9,700 pages and includes well over 100 documents,
many of which are not separately indexed. Moreover, because
counsel included appendices from earlier writ petitions, which
were arranged in the appropriate chronological order, there
are parts of Mireskandari’s appendix that are in chronological
order and parts that are reversed. And, because counsel did not
separately index the documents embedded in the writ petitions,
many of those documents have no chronological relationship
(proper or reversed) to other documents in the appendix.
Suffice it to say, counsel’s decision made reviewing the appendix
a needlessly frustrating and time-consuming effort.
59
ignored and where counsel exhibits a “refusal to desist” from
future rule violations].)
However, while we have declined to impose sanctions, we
must emphasize that we did not come to the point of considering
them in a haphazard or spontaneous manner. (See Alicia T.,
supra, 222 Cal.App.3d at p. 885.) Notwithstanding appellate
counsel’s contrition, her explanation implicitly admits that,
faced with strained office resources and this court’s notification
that no further time extensions would be granted, she made
the conscious decision to file an oversized opening brief and
14-volume appellant’s appendix that she knew violated
the applicable Rules of Court. 16 The effect of that decision,
as counsel must have known, was to shift the burden onto
opposing counsel and this court to navigate a materially deficient
appendix without the aid of proper record citations.
That decision is especially vexing, given counsel’s
corresponding decision to include almost 30 pages of argument
in Mireskandari’s oversized brief that appear to have been
simply copied and pasted from his post-trial motions. To be sure,
forfeiture rules generally bar an appellant from challenging
rulings on grounds that were not raised in the trial court, but
that does not give an appellant license to throw every argument
16 Ten months after Mireskandari filed this appeal, we
granted his request for a two-month extension of time to file
the opening brief and appellant’s appendix, with a notification
that no further extensions would be granted. Notwithstanding
that notification, we granted Mireskandari an additional
14-day extension after notifying him of his default for failing
to file a timely opening brief. All told, Mireskandari had almost
14 months from the date of the notice of appeal to prepare his
opening brief and appendix.
60
from his post-trial motions into his opening brief without making
the slightest effort to acknowledge our presumption of correctness
or to explain why the trial court’s rulings constitute reversible
error.
“The public fisc is limited, and justices and support staff
must carefully monitor and utilize their resources.” (Alicia T.,
supra, 222 Cal.App.3d at p. 885.) If Mireskandari and his
counsel did not have the time or resources to do anything more
than copy and paste arguments from previously drafted motions,
they should not have placed the burden on this court to craft
an opinion rejecting those arguments.
61
DISPOSITION
The order granting summary adjudication of the
professional negligence claim is reversed and the case is
remanded to the trial court for further proceedings consistent
with this opinion. The judgment is affirmed in all other respects.
The parties shall bear their own costs.
CERTIFIED FOR PARTIAL PUBLICATION
EGERTON, J.
We concur:
LAVIN, Acting P. J.
LIPNER, J. ∗
∗
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
62