Nejad v. Abernathy

MOHAMMAD RAHMANI NEJAD, Plaintiff and Appellant, v. CHRISTOPHER R. ABERNATHY, et al., Defendants and Respondents.

B304481, B307759

California Court of Appeals, Second District, Fourth Division

November 1, 2021

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No.19STCV11880, Elaine Lu, Judge. Affirmed as modified.

The Appellate Law Firm, Berangere Allen-Blaine for Plaintiff and Appellant Mohammad Rahmani Nejad.

Law Offices of Dilip Vithlani, Dilip Vithlani for Defendants and Respondents Christopher R. Abernathy and Eugene Carson III.

Law Office of Howard Goodman and Howard Goodman for Defendant and Respondent Jack Zuckerman.

MANELLA, P. J.

INTRODUCTION

Respondents attorneys Christopher Abernathy and Eugene Carson represented appellant Mohammad Rahmani Nejad's former wife in the underlying divorce case. Respondent Jack Zuckerman was an independent accounting expert, appointed by the court pursuant to the parties' stipulation. After settling the divorce case, Nejad brought the instant case against respondents, alleging that they conspired to exploit the underlying divorce case through various statements and omissions made in their respective roles as counsel (Abernathy and Carson) and independent expert (Zuckerman). Zuckerman filed a motion under Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP statute, to strike Nejad's claims against him. (See Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610 615.) Abernathy and Carson followed suit, filing an anti-SLAPP motion to strike Nejad's similar claims against them. In addition to opposing the motions, Nejad moved for relief from the discovery stay automatically imposed by their filing, requesting permission to depose respondents and other prospective witnesses. The trial court granted both anti-SLAPP motions and dismissed all claims against respondents, concluding that the claims arose from activity protected by both the anti-SLAPP statute (shifting the burden to Nejad to establish a probability of prevailing on the claims) and the litigation privilege set forth in Civil Code section 47, subdivision (b) (preventing Nejad from meeting his burden). Reasoning that Nejad's requested discovery would not change these conclusions, the court denied Nejad's motion for relief from the discovery stay. The court also denied Nejad's subsequent motion for reconsideration of its order granting Abernathy and Carson's anti-SLAPP motion.

Zuckerman filed a motion to recover attorney fees, as did Abernathy and Carson. Nejad did not dispute respondents' entitlement to fees as prevailing anti-SLAPP movants, but disputed the reasonableness of the amounts of fees claimed. Granting both fee motions, the court found counsel's claimed hourly rates reasonable, made certain reductions to the hours claimed, and awarded fees for the remaining hours.

In Nejad's consolidated appeals from the orders granting respondents' anti-SLAPP and fee motions, he contends the trial court erred in (1) granting respondents' anti-SLAPP motions; and (2) calculating the amounts of attorney fees to award respondents. Respondents dispute his contentions. Abernathy and Carson additionally contend that Nejad's appeal from the order granting their anti-SLAPP motion was untimely.

We reject Abernathy and Carson's challenge to the timeliness of Nejad's appeal. On the merits, we reject Nejad's challenges to the trial court's orders granting respondents' anti-SLAPP motions. We further reject his challenge to the orders awarding attorney fees, except in one minor respect: we conclude the trial court, relying on a misunderstanding of the law advanced by Zuckerman, erred in awarding him $262.50 in fees for preparation of a demand letter. We therefore affirm the order granting Zuckerman's motion for attorney fees as modified by a reduction of the fee award from $23, 362.50 to $23, 100. We affirm the other orders in their entirety.

BACKGROUND

A. Nejad's Complaint

In 2013, Nejad's then-wife filed a petition for dissolution of their marriage. She was represented in the divorce case by Abernathy and Carson. In 2015, pursuant to a stipulation by the parties, the family court appointed Zuckerman as an independent forensic accounting expert, tasked with preparing a report on the tracing of community and separate property acquired during the marriage. In 2016, Zuckerman submitted his report and testified at trial that after reviewing additional documents sent to him by Nejad, he believed the report was reliable. Nearly a year later, he was recalled as a witness at the ongoing trial, shown several of the additional documents Nejad had sent him, and testified that because he had prepared his report without reviewing those documents, the report was not reliable. The family court replaced Zuckerman with a different expert (without finding he had engaged in any misconduct), and the parties soon thereafter settled the case. The family court denied Nejad's subsequent request for sanctions against Abernathy and Carson for allegedly conspiring with Zuckerman to delay resolution of the case and inflate its costs. In reviewing the history of acrimony between Nejad and Carson during the divorce case, the family court quoted a 2016 email from Nejad to Carson, in which Nejad promised to file a lawsuit against Carson for his conduct in litigating the divorce case, vowing, "Once this case is over, I will have only one MISSION in life and that is to make sure you get what you deserve."

In August 2019, Nejad filed the first amended complaint (FAC) in this action, naming respondents as defendants.^[1] At the outset, the FAC announced that "[t]his case involves damages sustained by Plaintiff in [the underlying divorce case]." The FAC contained causes of action against respondents for fraud, conspiracy to commit fraud, aiding and abetting (against Abernathy and Carson only), bribery, intentional and negligent infliction of emotional distress, unfair business practices (against Zuckerman only), and violations of the Racketeer Influenced and Corrupt Organizations Act.

In support of these claims, Nejad alleged that respondents conspired to exploit the underlying divorce case in their roles as counsel and an independent expert, as follows: (1) respondents failed to disclose that Zuckerman was serving as an expert in other cases in which Abernathy was counsel, thereby concealing a conflict of interest that should have disqualified Zuckerman as an expert witness; (2) Abernathy and Carson disclosed the accounting-expert budget to Zuckerman, as an alleged bribe intended to help him inflate his bills; (3) Abernathy and Carson withheld Nejad's full bank records from Zuckerman when he was preparing his expert report; (4) Zuckerman submitted a fraudulent report based on the incomplete records; (5) after Nejad provided the full bank records, Zuckerman -- acting on Abernathy's instruction -- refused to supplement his report to take the full records into account; and (6) Zuckerman falsely testified at trial that he had reviewed the full bank records.^[2] Nejad sought, inter alia, damages for "unnecessary attorney fees" incurred in the divorce case.

B. The Anti-SLAPP Motions

In September 2019, Zuckerman filed an anti-SLAPP motion. Soon thereafter, Abernathy and Carson filed their own anti-SLAPP motion. The motions automatically stayed discovery. (See Code Civ. Proc., § 425.16, subd. (g) ["All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section"].) Nejad filed a motion for relief from the discovery stay. (See ibid. ["The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision"].)

1. Briefing

To meet their burden at the first step of the anti-SLAPP analysis, respondents argued that Nejad's claims arose from their statements and communicative conduct in their roles as counsel and independent expert witness in the divorce case, and that this activity was protected by the anti-SLAPP statute. With respect to the second step of the anti-SLAPP analysis, they argued that Nejad could not meet his burden to show a probability of prevailing on his claims, because the claims were barred by the litigation privilege. In arguing that the litigation privilege applied, they relied on, inter alia, Silberg v. Anderson (1990) 50 Cal.3d 205 (Silberg) and Ramalingam v. Thompson (2007) 151 Cal.App.4th 491 (Ramalingam), which we discuss below.^[3]Respondents also submitted declarations denying Nejad's allegations of misconduct.

In opposition to both motions, Nejad argued that his claims arose from unprotected activity because respondents' alleged acts were illegal and unrelated to any issue under consideration in the divorce case, such as the classification of the spouses' property. Nejad argued that the litigation privilege did not apply because his claims arose from a tortious course of noncommunicative conduct, viz respondents' "[c]onspiring to, and implementing a scheme to, enrich themselves . . . through exploitation of the Underlying Case in their roles as attorneys for a party and as a court appointed, ostensibly independent, expert." Relying principally on his own declaration and attached exhibits, he argued that he had produced sufficient evidence of respondents' alleged misconduct to establish a probability of prevailing on his claims. Nejad requested (and separately moved for) permission to depose respondents and several other prospective witnesses, arguing they controlled the only sources of information which could reveal the existence of the alleged conspiracy. He made no attempt to explain how the depositions might assist him in disputing the applicability of...