Judge Randolph M. Hammock, Case Number: 22VECV01309, Date: 2023-08-24 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22VECV01309, Date: 2023-08-24 Tentative Ruling

In case number 20STCV42618 (“the malpractice case), Plaintiff Andre Luiz Costa Soares (“Soares”) brings a claim against Defendant Jasmine A. Tehrani, a psychologist, for alleged professional negligence. Plaintiff alleges that Defendant incorrectly diagnosed him with schizophrenia and deemed him incompetent to represent himself in immigration proceedings.

In related case number 22VECV01309 (“the defamation case), Plaintiff Soares alleges that Defendant Tehrani defamed him by filing a police report following a death threat phone call that allegedly came from Plaintiff.

On July 20, 2023, by motion of Defendant in the malpractice case, this court granted Defendant’s motion to declare Plaintiff a vexatious litigant and ordered Plaintiff to furnish security.

Defendant now moves in the defamation case for an order requiring Plaintiff to furnish security in the amount of $7,500 pursuant to California Code of Civil Procedure section 391.3. Plaintiff opposed.

The amount of security in the instant action is set as $7,500.00. If Plaintiff fails to adequately furnish said security within 60 days, this case will be dismissed pursuant to CCP section 391.4.

Pursuant to Defendant’s request, the court takes judicial notice of all of Defendant’s Exhibits except for Exhibit E (Excel Spreadsheet of Plaintiff’s phone records produced by T-Mobile), as it is not the proper subject of judicial notice. However, the court will consider that Exhibit as evidence presented with the Declaration of Defendant’s counsel, Richard A. Wood.

The court takes judicial notice of the other exhibits without assuming the truth of the assertions contained therein. (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant.

In determining whether the plaintiff has a reasonable probability of prevailing, the “court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion.” (CCP 391.2.) “[I]f, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.” (§ 391.3(a).)

Thus, “[i]n pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed.” (Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1171 [citing §§ 391.1–391.6].)

In moving for an order requiring a vexatious litigant to post security, the defendant has the burden of showing there is no reasonable likelihood plaintiff will prevail in the action. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 640, 642.) “A court's decision that a vexatious litigant does not have a reasonable chance of success in the action is based on an evaluative judgment in which the court weighs the evidence.” (Id. at 636.)

Defendant moves to require Plaintiff furnish security in the amount of $7,500.00 in the defamation case. This court has already ruled that Plaintiff is a vexatious litigant in the related malpractice case and ordered Plaintiff to furnish security in the amount of $7,500.00. (See 07/20/2023 Order and Final Ruling in 20STCV42618.)

The litigation between Plaintiff and Defendant began with the related malpractice case, in which Plaintiff alleges professional negligence against Defendant. The FAC alleges that Defendant, a psychologist, gave Plaintiff a psychiatric exam pursuant to the order of an immigration judge. (FAC ¶¶ 5, 6.) Defendant found Plaintiff was “schizophrenic and incompetent to represent himself in Immigration proceedings.” (Id. ¶ 8.)

As a result of the diagnosis, Plaintiff “had to wait months until he had an attorney appointed to take care of his case -which delayed his case and extended his time in detention center.” (Id. ¶ 10.) Plaintiff alleges Defendant’s diagnosis caused him “emotional distress,” “medical expenses to have new evaluations showing he is not schizophrenic,” “mental and emotional sorrow and anguish,” “permanent physical injuries during the time he was detained in a facility he was not supposed to be,” and “other damages.” (Id. ¶ 22.)

On September 7, 2022, Plaintiff filed a second case against Defendant Tehrani, this time for defamation. As alleged in the Complaint, Defendant Tehrani filed a police report after she received a phone call during which the caller stated: “Jasmine Tehrani, I don’t know what you’re thinking, but you're going to die, bitch.” (Compl. p. 2, ¶ 1.) Defendant stated in the police report that she recognized the caller’s voice as Plaintiff’s. (Id.) Plaintiff alleges these statements are false—he was not he caller—and therefore Defendant defamed him. Plaintiff appears to bring a single cause of action for defamation.

As a threshold issue, this court has already declared Plaintiff a vexatious litigant in the malpractice case. (See 07/20/2023 Order and Final Ruling in 20STCV42618.) That element is met. The court turns to Plaintiff’s probability of prevailing in this action.

Defendant argues it is “highly likely” that she, and not Plaintiff, will prevail in the defamation case. (Mtn. 6: 2-3.) This court agrees, for two independent reasons.

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (J-M Mfg. Co. v. Phillips & Cohen LLP (2016) 247 Cal. App. 4th 87, 97.)

First, the evidence strongly suggests that it was, in fact, Plaintiff who made the threatening phone call to Defendant. Thus, the essential element of falsity is missing.

Defendant Tehrani attests that the person who called her “did not identify himself but spoke with an accent that [she] recognized from prior dealings with” Plaintiff. (Tehrani Decl. ¶ 11.) Defendant presents further evidence that an LAPD investigation and separate criminal proceeding were instituted against Plaintiff based on the alleged phone call. (Wood Decl. ¶ 10(C.) Defendant’s counsel, Richard A. Wood, attests as follows:

Dr. Tehrani reported the threat to the Los Angeles Police Department which has undertaken an investigation that included a search warrant for Mr. Costa Soares’ cell phone records with his carrier, T-Mobile. T-Mobile has produced records which document that Mr. Soares’ cell phone was used to make a call to Dr. Tehrani at 5:13 p.m. on January 18, 2022, which is almost precisely the time she reported the threatening phone call to the Los Angeles Police Department.

Defendant has provided the search warrant issued in the criminal proceeding against Plaintiff, which sought records from T-Mobile documenting telephone calls from Plaintiff’s cell phone during the relevant period. (Wood Decl., Exh. D.) Defendant also provides an Excel spreadsheet produced by T-Mobile which reflects a call made from Plaintiff’s cell phone to Defendant Tehrani’s private cell phone number on January 19, 2022 at 01:13 a.m., Coordinated Universal Time. (Id., Exh. E.) Defendant provides a conversion table reflecting that 01:13 on January 19, 2022 in Coordinated Universal Time (UTC) converts to 5:13 p.m. on January 18, 2022, in Pacific Standard Time—right around the time Defendant received the threatening call. (Wood Decl., Exh. F.) [FN 1]

In opposition, Plaintiff contends he has 12 witnesses who will testify on his behalf in support of both actions against Defendant. Be that as it may, Plaintiff has not provided evidence by affidavit, declaration, or otherwise from these witnesses. Plaintiff has likewise not provided any evidence refuting Defendant’s “smoking gun” evidence that it was Plaintiff who made the threatening phone call.

Thus, considering the evidence presented, Defendant has demonstrated that Plaintiff cannot meet the required falsity element of his defamation claim. Therefore, there is no reasonable probability that Plaintiff will prevail in this action.

Second, although Defendant did not raise this argument, the evidence strongly suggests that her statements to law enforcement were privileged under Civil Code section 47.

A privileged statement is not actionable as defamation. (Taus v. Loftus (2007) 40 Cal. 4th 683, 720.) Under section 47, “[a] privileged publication or broadcast is one made… [i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.”

“[T]he overwhelming majority of cases conclude that when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys” the section 47 privilege. (Hagberg v. California Fed. Bank (2004) 32 Cal. 4th 350, 364.) Thus, as a general matter, Defendant’s statements to law enforcement suggesting Plaintiff made the threatening phone call are privileged. Because these statements form the basis of Plaintiff’s defamation claim, the claim fails.

This court is aware that section 47 was amended in 2021 to exclude from the privilege any communication between a person and a law enforcement agency where a person makes a knowingly false report, or does so with reckless disregard for the truth or falsity of the report. (47(b)(5).) Here, as already discussed, the evidence suggests that Defendant’s report to law enforcement was accurate. Even if it was not, there is no evidence that Defendant knowingly made the false report or did so with a reckless disregard of the falsity. Indeed, based on the evidence presented and totality of the circumstances, Defendant was justified in suspecting that the phone call came from Plaintiff. This is a separate reason that Plaintiff has no reasonable possibility of prevailing in this action.

The amount of security in the instant action is set as $7,500.00. If Plaintiff fails to adequately furnish said security within 60 days, this case will be dismissed pursuant to CCP section 391.4.

FN 1 - It goes without saying that civil cases and criminal cases carry two very different burdens of proof. (See Stoner v. Williams (1996) 46 Cal. App. 4th 986, 1001 [“Generally, our criminal law system places greater burdens on the plaintiff or prosecutor to prove a case against a defendant than does our civil law system. For instance, the burden of proof is greater. In criminal cases, guilt must be proved beyond a reasonable doubt. In civil cases, liability generally must be proved by a preponderance of the evidence.]). Here, this court concerns itself with only the civil “preponderance of the evidence” standard and with the evidence as presented. This court in no way attempts to exercise any judgment—nor express an opinion on—the pending criminal proceeding beyond what is necessary to rule on the motion before it now.