Garmestani v. Wasserman CA2/3

Filed 3/19/21 Garmestani v. Wasserman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MARJAN GARMESTANI, B304973, B307428
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 19STCV35142)
v. ORDER MODIFYING OPINION
MICHAEL E. WASSERMAN et al., [NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:
Tashnizi Law Firm and Paul Tashnizi as counsel for
Faramarz Zargar filed a notice of errata on March 17, 2021. He
stated that he erroneously listed attorney Janette S. Bodenstein
as an attorney of record for Zargar and requested that we correct
our opinion, filed on March 12, 2021. Janette S. Bodenstein then
filed a declaration stating under penalty of perjury that she never
represented Zargar in the underlying lawsuit or appeal.
It is therefore ordered that the opinion filed on March 12,
2021 is modified to delete Janette S. Bodenstein as counsel for
Zargar.
This modification does not change the judgment.
NOT TO BE PUBLISHED.
____________________________________________________________
SALTER, J.* LAVIN, Acting P. J. EGERTON, J.
* Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
2
Filed 3/12/21 Garmestani v. Wasserman CA2/3 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MARJAN GARMESTANI, B304973, B307428
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 19STCV35142)
MICHAEL E. WASSERMAN et al.,
Defendants and Respondents.
APPEALS from orders of the Superior Court of Los Angeles
County, Anthony J. Mohr, Judge. Affirmed.
Bartsch Law Group and Duane L. Bartsch for Plaintiff and
Appellant.
Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and
Janette S. Bodenstein for Defendant and Respondent Michael E.
Wasserman.
Tashnizi Law Firm, Paul Tashnizi and Janette S.
Bodenstein for Defendant and Respondent Faramarz Zargar.
——————————
This is an anti-SLAPP action. In an underlying action,
Faramarz Zargar sued Marjan Garmestani for dental
malpractice. After Garmestani prevailed in that lawsuit, she
sued Zargar and the attorney who had represented him,
Michael E. Wasserman, for malicious prosecution. Zargar and
Wasserman moved to specially strike the complaint under Code
of Civil Procedure1 section 425.16. The trial court granted their
motions. Garmestani now appeals the orders granting those
motions and awarding Zargar and Wasserman attorney fees.2
We affirm the orders.
BACKGROUND
I. The underlying action
Garmestani, a dentist, treated Zargar by replacing his
lower teeth with implants. She last saw him in May 2016.
Zargar thereafter sued Garmestani for negligence arising out of
that treatment. A jury found that Garmestani was negligent, but
her negligence was not a substantial factor in causing harm to
Zargar. Judgment was therefore entered in Garmestani’s favor.
II. The malicious prosecution action
Garmestani then sued Zargar and Wasserman for
malicious prosecution, negligence, and intentional and negligent
1 All further statutory references are to the Code of Civil
Procedure.
2 Zargar has filed a joinder in Wasserman’s briefs on
appeal.
2
infliction of emotional distress.3 Garmestani alleged that in the
underlying action Zargar concealed that other dentists treated
him after she did and that Wasserman, despite learning of his
client’s deceit, continued to prosecute the underlying action
though lacking an honest and reasonable belief in it. As proof
that another dentist treated Zargar and caused any injuries,
Garmestani primarily relied on the last X-ray she took of him on
May 20, 2016 to show that she put one type of material in
Zargar’s access holes. But subsequent X-rays showed a different
material in the access holes. From this, Garmestani surmised
that another dentist treated Zargar after he left her care. Yet, in
discovery responses Zargar never identified a dentist who treated
him after he left Garmestani’s care.
In response to the complaint, Zargar and Wasserman filed
separate motions to strike the operative pleading, the second
amended complaint.
A. Wasserman’s motion and evidence
Wasserman argued that Garmestani could not show a
probability of prevailing on her malicious prosecution cause of
action, and the litigation privilege barred the remaining causes of
action. To support his motion, Wasserman submitted his
declaration and discovery from the underlying action.
1. Wasserman’s declaration
Wasserman denied harboring malice, ill will or spite
towards Garmestani in filing and maintaining the underlying
action. Rather, before filing the complaint, he conducted a
3 Zargar
also sued but dismissed the Law Office of
Michael E. Wasserman.
3
detailed investigation that included reviewing Zargar’s medical
records and consulting implant expert Dr. Nader Salib, who
examined Zargar and advised that Garmestani had improperly
placed the implants. After the case was filed, Wasserman had
Zargar examined by Dr. Daniel Kantarovich, who opined that the
dental work Garmestani performed was negligent. Throughout
the litigation, Zargar maintained that only Garmestani treated
him for his implants, although he did consult others. Wasserman
had no reason to doubt Zargar’s claim that the dentures and
implants Zargar wore at trial were the ones Garmestani made.
Wasserman also denied that Garmestani’s attorney in the
underlying action told him that Zargar was concealing the
identity of a treating dentist and that he should dismiss the case.
2. Discovery in the underlying action
Wasserman countered Garmestani’s claim that Zargar
concealed he saw other dentists by pointing to discovery in which
Zargar identified dentists he consulted because he was
experiencing discomfort and was unable to eat after getting his
implants: Dr. Sohrab Yazdani, Dr. Ron Nourian at Whittier
Dental Center, and Dr. Taher Aminikharrazi. Dr. Aminikharrazi
advised Zargar in July 2016 that his implants were poorly placed
and infected and recommended removing and replacing them.
Zargar’s expert Dr. Salib similarly testified at his
deposition that Zargar’s implants should be removed because food
and bacteria got in through a gap in the prosthesis. Dr. Salib
identified other problems with the implants, including that they
were poorly placed in insufficient bone. According to him,
Garmestani “violated all basic implantology rules and did not
respect basic biology of keeping sufficient distance” for hard and
soft tissue considerations.
4
Garmestani’s own experts agreed that there were problems
with Zargar’s implants. One said that Garmestani’s last X-ray
showed a gap in the seating of the prosthesis. Her other expert
testified at his deposition that the framework did not fit on a
lower interior implant and that Garmestani did not correct the
problem.
To further counter the assertion that someone treated
Zargar after he stopped seeing Garmestani, Zargar’s
prosthodontic expert Dr. Kantarovich investigated whether
Zargar’s prosthesis had been removed after Zargar left
Garmestani’s care. His investigation was inconclusive. Still, he
found speculative the claim that Zargar’s prosthesis had been
removed and replaced. Instead, he believed that the last X-ray
Garmestani claimed she took on May 20, 2016 was actually taken
a month earlier, in April 2016. This explained why X-rays taken
after Zargar left Garmestani’s care showed a material in the
access holes that was different than shown in Garmestani’s last
X-ray. Stated otherwise, after Garmestani took the X-ray in
April 2016, she put a different material in his access holes and
that is what was seen on subsequent X-rays.
B. Zargar’s motion and evidence
Zargar also argued that Garmestani could not establish the
elements of a malicious prosecution action. Rather, Zargar had
brought and continued the underlying action with probable
cause, as the jury’s finding that Garmestani was negligent
underscored. Further, Zargar suffered pain, inflammation, and
infection after Garmestani’s treatment, showing that she injured
him. Similar to Wasserman’s motion, Zargar denied that he
concealed the identity of other dentists he saw after Garmestani
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and pointed to his discovery responses identifying various
dentists he had consulted.
C. Garmestani’s oppositions
To show that Zargar and Wasserman lacked probable cause
to bring and to maintain the underlying action, Garmestani
submitted select portions of Zargar’s written discovery responses
from the underlying action in which Zargar identified
Dr. Aminikharrazi as the only dentist he saw after leaving
Garmestani’s care. Similarly, at his deposition, Zargar said that
Dr. Aminikharrazi was the only dentist he saw after
discontinuing care with Garmestani and denied seeing a dentist
before discontinuing treatment.
Finally, Garmestani submitted portions of Dr. Salib’s
deposition testimony in which he answered questions about
whether someone treated Zargar after Zargar left Garmestani’s
care. According to Garmestani’s interpretation of that testimony,
Dr. Salib agreed that another dentist removed Zargar’s
prosthesis after Zargar left her care.
III. The trial court’s ruling
The trial court granted Wasserman’s and Zargar’s motions.
It found “abundant” probable cause to bring the case based on
experts who opined that Garmestani was negligent. The trial
court also noted that the existence of another dentist would not
negate probable cause. Finally, there was no evidence of malice
“whatsoever.” Accordingly, the trial court entered judgment in
favor of Wasserman and Zargar and dismissed Garmestani’s
operative pleading with prejudice. The trial court thereafter
granted Wasserman and Zargar attorney fees under section
425.16, subdivision (c)(1).
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DISCUSSION
I. The anti-SLAPP statute and standard of review
Section 425.16, the anti-SLAPP statute, provides a
procedure for the early dismissal of SLAPP suits (strategic
lawsuits against public participation), which is litigation of a
harassing nature brought to challenge the exercise of protected
free speech rights. (Fahlen v. Sutter Central Valley Hospitals
(2014) 58 Cal.4th 655, 665 & fn. 3.) The anti-SLAPP statute is
designed to weed out, at an early stage, meritless claims arising
from protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376,
384.)
Evaluating an anti-SLAPP motion requires the trial court
first to determine whether the moving defendant has made a
threshold showing that the challenged action arises from
protected activity, that is, activity in furtherance of the rights of
petition or free speech. (§ 425.16, subd. (e); Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056.) If so, the burden shifts to the
plaintiff to demonstrate a probability of prevailing. (Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.) This
second step is a summary-judgment-like procedure at which the
trial court does not weigh evidence or resolve conflicting factual
claims. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) The trial
court’s inquiry is limited to whether the plaintiff has stated a
legally sufficient claim and made a prima facie factual showing
sufficient to sustain a favorable judgment, accepting as true the
plaintiff’s evidence and evaluating the defendant’s showing only
to determine if it defeats the plaintiff’s claim as a matter of law.
(Id. at pp. 384–385.)
We review de novo an order granting a special motion to
strike. (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at
7
p. 820.) We consider the “pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based,” examine the complaint in a fair and commonsense
manner, and broadly construe the anti-SLAPP statute. (§ 425.16,
subds. (a), (b)(2).) However, we do not weigh credibility or
compare the weight of the evidence. (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
II. Malicious prosecution and probability of prevailing4
There is no dispute that the action arises from protected
activity. We therefore proceed to the second prong of the anti-
SLAPP statute, whether Garmestani established a probability of
prevailing on her malicious prosecution cause of action. To
establish that cause of action, she had to plead and prove that the
underlying action (1) was commenced by or at the defendants’
direction and was pursued to a legal termination in plaintiff’s
favor; (2) was brought without probable cause; and (3) was
initiated with malice. (Crowley v. Katleman (1994) 8 Cal.4th 666,
676.) A cause of action for malicious prosecution will lie if an
action is commenced or continued without probable cause.
(Zamos v. Stroud (2004) 32 Cal.4th 958, 965–966.) Here,
Garmestani obtained a judgment on the merits in her favor in the
underlying action, thereby satisfying the first element of the
cause of action. (See generally Casa Herrera, Inc. v. Beydoun
4 Garmestani has not addressed her causes of action for
negligence and for intentional and negligent infliction of
emotional distress. Accordingly, she has forfeited any challenge
to the ruling on those causes of action, and we do not address
them. (See, e.g., Wall Street Network, Ltd. v. New York Times Co.
(2008) 164 Cal.App.4th 1171, 1177–1178.)
8
(2004) 32 Cal.4th 336, 341–342.) We therefore focus on the
second element, probable cause, because it is dispositive of the
appeal and obviates any need to discuss the third element of
malice.
Probable cause asks whether the prior action was
objectively legally tenable. (Soukup v. Law Offices of Herbert
Hafif, supra, 39 Cal.4th at p. 292.) “Probable cause is a low
threshold designed to protect a litigant’s right to assert arguable
legal claims even if the claims are extremely unlikely to succeed,”
and therefore the standard of probable cause to bring a civil suit
is equivalent to that for determining the frivolousness of an
appeal. (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047.)
Only actions that any reasonable attorney would agree are totally
and completely without merit may form the basis for a malicious
prosecution action. (Id. at p. 1048; Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 824.) “Plaintiffs and their
attorneys are not required, on penalty of tort liability, to attempt
to predict how a trier of fact will weigh the competing evidence,
or to abandon their claim if they think it likely the evidence will
ultimately weigh against them. They have the right to bring a
claim they think unlikely to succeed, so long as it is arguably
meritorious.” (Wilson, at p. 822.)
As the trial court found here, Wasserman and Zargar had
abundant probable cause to bring and to maintain the underlying
action. After Garmestani treated Zargar, he began experiencing
pain and was unable to chew on one side of his mouth. Zargar
therefore consulted Dr. Aminikharrazi, who told Zargar the
implants were improperly placed and infected and recommended
replacing them. Before Wasserman filed a lawsuit on Zargar’s
behalf, Wasserman had another dentist familiar with implants
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evaluate Zargar, and that dentist, Dr. Salib, agreed that
Garmestani had improperly placed the implants. Then, during
litigation, other experts—including Garmestani’s—agreed that
the prosthesis did not fit properly. This constituted abundant
competent evidence to substantiate the negligence claim. (See
generally Wilson v. Parker, Coverty & Chidester, supra, 28
Cal.4th at p. 822.) Indeed, it is hard to see that any reasonable
attorney would consider the claim meritless and frivolous.
Garmestani, however, maintains that the evidence
conclusively established another dentist treated Zargar and that
Zargar concealed this dentist’s identity. However, it is by no
means certain that anyone other than Garmestani treated
Zargar. Garmestani primarily relies on X-rays taken after she
stopped treating Zargar. Those X-rays show a cement material in
the prosthetic’s access holes that was not present in the last X-
ray she took of Zargar, which she claimed she took in May 2016.
To Garmestani, this is the smoking gun that proves another
doctor treated Zargar after she did; hence, there was a
superseding cause of his injuries. But Dr. Kantarovich offered
other explanations for this mystery other than that somebody
treated Zargar after Garmestani, the main one being that
Garmestani was lying. According to Dr. Kantarovich, the X-rays
were not taken in May 2016, when Garmestani said they were.
They were taken earlier, in April 2016. If so, then Garmestani,
who removed Zargar’s prosthesis multiple times before she
stopped seeing him, could have put the different material in the
access holes that appeared on subsequent X-rays.
Garmestani also makes too much of Dr. Salib’s deposition
testimony about the alleged undisclosed dentist. Dr. Salib did
not testify that someone treated Zargar after Garmestani.
10
Dr. Salib merely agreed that Garmestani used one type of
material to fill access holes and that X-rays taken after Zargar
left her care showed a different material in them. Then, in
response to a question presuming the existence of another
dentist, Dr. Salib said he would have liked to have seen that
dentist’s records. But Dr. Salib did not testify either that another
dentist existed or that another dentist treated Zargar after
Garmestani. He did not know if anyone removed the prosthesis
after Zargar left Garmestani’s care. Indeed, whether someone
removed the prosthesis after Zargar stopped seeing Garmestani
was irrelevant to his opinion about Garmestani’s negligence.
Thus, neither the X-rays nor Dr. Salib’s testimony conclusively
established that Zargar received treatment after Garmestani
such that she was not the cause of his injury. Indeed,
Garmestani’s own expert had no opinion whether any dentist
treated Zargar after Garmestani.
Even if another dentist treated Zargar after he stopped
seeing Garmestani, that would not necessarily show the absence
of probable cause for the underlying action. Rather, the defense
of superseding cause absolves a tortfeasor, even though her
conduct was a substantial contributing factor, when an
independent event intervenes in the chain of causation,
producing harm of a kind and degree so far beyond the risk the
original tortfeasor should have foreseen that it is unfair to hold
her responsible. (Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 573, fn. 9.) Given that multiple dentists and experts found
that Garmestani’s prosthesis was poorly placed and that Zargar
experienced pain and infection, a reasonable attorney could
believe that a jury would find Garmestani liable, even if another
tortfeasor existed. In fact, the jury found that Garmestani was
11
negligent, even if her negligence was not a substantial factor in
causing the injury.
Given that nothing conclusively established that some
unnamed dentist treated Zargar, he can hardly be found guilty of
concealing the identity of someone who might not exist. Rather,
Zargar consistently maintained that only Garmestani treated
him in connection with the implants. And Wasserman was
entitled to rely on Zargar’s representations in the absence of
discovering Zargar provided false information. (See, e.g., Litinsky
v. Kaplan (2019) 40 Cal.App.5th 970, 981.) Therefore,
Garmestani’s reliance on Zargar’s supposedly inadequate
discovery responses does not help her meet her burden. In accord
with his position that he only treated with Garmestani, Zargar
identified dentists whom he consulted but from whom he received
no treatment. Further, Garmestani’s claim that Zargar identified
only Dr. Aminikharrazi in discovery is simply wrong. He also
identified Dr. Yazdani and the Whittier Dental Center.
As for Garmestani’s contention that the trial court
improperly weighed the evidence and credited only Zargar’s and
Wasserman’s evidence, it is meritless. She takes out of context
comments the trial court made. The trial court said that
Garmestani was inviting speculation “as to some unknown
damage. Yes, there is a photograph. But there’s really no solid
evidence of an unknown dentist. There might be.” Even so, “the
evidence doesn’t preponderate for lack of probable cause. [¶] Not
only that, there is no indication of malice, whatsoever, in this
case. Again, you’ve got expert witnesses. The Plaintiff’s counsel
consulted with an expert. . . . [T]he Plaintiff’s counsel talked
with . . . the Plaintiff. I have a right to believe what the Plaintiff
was saying.” (Italics added.) Considering these comments in the
12
totality of the trial court’s statement, it was merely
acknowledging that Zargar and Wasserman’s showing defeated
Garmestani’s claim. (See, e.g., Baral v. Schnitt, supra, 1 Cal.5th
at pp. 384–385.) The trial court did not resolve disputed issues of
fact, such as whether a dentist treated Zargar after Garmestani
did. In fact, the trial court said that the existence of another
dentist would not alter its opinion. In short, the trial court
properly decided issues of law based on the facts before it,
accepting as true Garmestani’s evidence but finding that
Wasserman’s and Zargar’s showing defeated it as a matter of law.
(See, e.g., Litinsky v. Kaplan, supra, 40 Cal.App.5th at p. 982.)
But, even if we assumed that the trial court misunderstood its
role in evaluating the anti-SLAPP motions, it would be of no
moment because our review is de novo.
III. Attorney fees
The only argument Garmestani makes regarding the order
granting Wasserman and Zargar attorney fees is that if we
reverse the orders striking her complaint, we must also reverse
the order granting attorney fees. As we affirm the orders striking
Garmestani’s complaint, we also affirm the order awarding
Wasserman and Zargar their attorney fees.
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DISPOSITION
The orders are affirmed. Michael E. Wasserman and
Faramarz Zargar are awarded their costs on appeal.
NOT TO BE PUBLISHED.
SALTER, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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