Thursday, February 21, 2013
C.A. Reinstates Attorney De Haas’s Malicious Prosecution Action
By a MetNews Staff Writer
The Court of Appeal for this district has reinstituted a malicious prosecution action filed by attorney Louis De Haas against a former client who sued him for malpractice.
The opinion, by Justice Steven Suzukawa, reverses Los Angeles Superior Court Judge Soussan G. Bruguera’s judgment in favor of Dr. Hrayr Shahinian and his businesses, Skull Base Institute and Skull Base Medical Group, Inc., entered after she granted their anti-SLAPP motion. However, the opinion affirms Bruguera’s judgment in favor of Shahinian’s attorney, G. Emmett Raitt Jr. and his firm, then known as Raitt & Associates (now The Raitt Law Firm).
Shahinian, a neurosurgeon, initially sued De Haas’s law firm, La Follette, Johnson, De Haas, Fesler & Ames, and partner Donald Fesler, later adding De Haas as defendant. The firm had represented Shahinian in at least four actions against him and Cedars-Sinai Medical Center where he performed surgery from 1996 until 2005, when he left.
(The opinion did not reflect that Shahinian was first stripped of some privileges by Cedars-Sinai, then ousted. The Court of Appeal in 2011 affirmed the Superior Court’s conformation of Shahinian’s $4.7 arbitration award against the hospital and a proviso that the termination of his privileges and staff membership would be deemed voluntary.)
In 2006, Shahinian and Cedars were sued for medical malpractice by Marc and Lawanna Kotolnick. The La Follette firm, representing Cedars, alone, on Nov. 20, 2007 moved for summary judgment.
The following day, Shahinian—upset that a granting of the motion would leave him as the lone defendant, with increased vulnerability—brought his legal malpractice action, alleging that the law firm had a conflict of interest, breached its duty to him, and, in essence, sold him out. Skull Base Institute and Skull Base Medical Group, Inc. were also plaintiffs.
Shahinian in 2008 filed his own motion for summary judgment in the action brought by the Kotolnicks and prevailed, but did not then dismiss his legal malpractice action against De Haas and his law firm.
Suffered No Damage
“Because the trial court granted summary judgment for Shahinian in the Kotolnick action, Shahinian could not have suffered any actual damages as a result of De Haas’s alleged malpractice,” Suzukawa said in Tuesday’s unpublished opinion. “In other words, as De Haas correctly asserts, whatever potential damages or increased exposure Shahinian faced as a result of Cedars’s summary judgment motion never ripened into actual damages because judgment was granted for Shahinian.”
Suzukawa recited that a malicious prosecution action requires that the underlying lawsuit was one no reasonable attorney would have seen as having merit and that it was commenced out of malice. He wrote:
“[E]ven if De Haas’s representation of Cedars in the Kotolnick action breached a duty to Shahinian—an issue we do not reach—that breach of duty could not constitute actionable legal malpractice or breach of fiduciary duty. Because no reasonable attorney could have concluded otherwise, there was no probable cause to pursue Shahinian’s action against De Haas.”
The jurist cited deposition statements by Shahinian from which, he said, malice could be inferred. There was, however, no prima facie showing of malice on the part of Raitt in bringing the action against De Haas, he said.
It was filed Tuesday and was not certified for publication.
The case is De Haas v. Shahinian, B234726.
De Haas, a former president of the Los Angeles chapter of the American Board of Trial Advocates, represented himself, along with David J. Ozeran of his firm. Robert C. Baker, Phillip A. Baker, R. Jeffrey Neer, Daniel P. Leonard, and Derrick S. Lowe of Baker, Keener & Nahra argued for Shahinian and his businesses, while Raitt acted as his own lawyer.
This was the second Court of Appeal decision dealing with litigation by Shahinian against the LaFollette firm. In 2010, Div. One of this district’s appeals court affirmed a grant of summary judgment by Los Angeles Superior Court Judge Yvette M. Palazuelos in favor of Cedars.
After Cedars was sued in 2005 connection with surgery performed by Shahinian, the plaintiff’s attorney deposed Shahinian. At that deposition, Fessler asked the doctor about prior lawsuits against him.
Based on what was revealed, the plaintiff in the medical malpractice action joined Shahinian in the lawsuit.
Shahinian sued the lawyers, asserting they used confidential information garnered in the course of their previous representation of him. Explaining the affirmance, Justice Frances Rothschild wrote:
“[W]hile LaFollette’s presumed possession of confidential information might have entitled Shahinian to an order disqualifying, or an injunction preventing, LaFollette from representing Cedars in the Gutierrez action…, he cannot prevail on a cause of action for damages without evidence that LaFollette not only possessed confidential information but actually used it adversely to him in representing Cedars.”
Shahinian Sues Doctor
The Court of Appeal for this district also dealt with a defamation action Shahinian brought in 2003 against Dr. Martin Weiss, chairman of the Department of Neurological Surgery at the University of Southern California’s Keck School of Medicine, and against USC. Weiss had for expressed the view that doctors, such as Shahinian, who are not neurosurgeons, are not competent to perform skull base surgery.
That view was voiced by Weiss and other doctors in response to Cedar’s hiring of Shahinian as director of its Skull Base Institute.
Div. Five, in a 2004 opinion by Presiding Justice Paul Turner, held that then-Los Angeles Superior Court Judge John Shook properly denied the defendant’s anti-SLAPP motion.
The action was dismissed in 2005 following a confidential settlement.
While Shahinian claims on his website to have been director of Cedar’s institute from 1996-2004, referee’s report in the action against Weiss reveals that Shahinian was fired from that post by a letter of Sept. 11, 2002.
Online records of the California Medical Board reflect only one malpractice judgment against Shahinian, incurred in 1996. However, the Los Angeles Times on April 9, 2010, reported a $800,600 judgment against him in a malpractice case and quoted the doctor as saying he had prevailed in most of the 17-or-so lawsuits he had faced.
The Times said Shahinian had removed a growth other than the tumor he intended to excise. The story quoted the trial judge, Los Angeles Superior Court Judge J. Stephen Czuleger, as accusing Shahinian of being “more interested in marketing than he was in medicine” and remarking:
“I believe either he or people acting on his behalf whited out a portion of [the] pathology report.”
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