California Court of Appeal Nov 17, 2022 No. E077975Unpublished
Filed 11/17/22 Saba v. Virgo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
GEORGE A. SABA,
Plaintiff and Appellant, E077975
v. (Super.Ct.No. CIVDS1811376)
PAUL VIRGO, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
George A. Saba, in pro. per., for Plaintiff and Appellant.
Freeman Mathis & Gary, Daniel C. Walsh; Wood Smith Henning & Berman and
Stephen M. Caine for Defendant and Respondent.
1
In 2011, attorney George A. Saba was diagnosed with Alzheimer’s type dementia,
and in 2017, he was involuntarily placed on inactive status after the State Bar determined
he was unable to competently perform his duties as an attorney “because of mental
infirmity or illness.” (Bus. & Prof. Code, § 6007, subd. (b)(3) (section 6007).) Following
that decision, Saba sued many of the parties involved in his State Bar hearing, including
his defense attorney, Paul Virgo. This is his third appeal on the issue.
In 2018, Saba filed a lawsuit against the State Bar prosecutor who handled his
case, the psychologist appointed as his independent medical examiner, and a
neuropsychologist with whom the examiner consulted (Saba I). He alleged the defendants
had conspired to deprive him of his law license by—among other things—requesting
irrelevant medical records and appointing an unqualified medical examiner to provide a
false opinion. The trial court dismissed Saba’s complaint at the pleading stage on the
ground his claims arose from constitutionally protected petitioning activity that is
shielded by the litigation privilege in Civil Code section 47. We affirmed that judgment
in our unpublished decision, Saba v. Lareau (June 26, 2019, E070635).
Shortly after his first lawsuit was dismissed, Saba filed this action (Saba II)
against the doctors, Virgo, the State Bar, and the supervisor of the State Bar’s prosecutor 1 based on the same allegations as Saba I. In our unpublished decision, Saba v. Panos
(June 26, 2019, E071166), we affirmed the dismissal of the claims against the doctors on
the same privilege grounds as before.
1 Of these defendants, only attorney Virgo is a party to this appeal. 2
In this appeal, Saba challenges the order granting summary judgment in Virgo’s
favor. We conclude the trial court correctly determined that Saba had not presented
evidence sufficient to go to trial on his claims against his former attorney and therefore
affirm the judgment.
I
FACTS
A. Disciplinary Background
Saba is an Army veteran and was admitted to the California Bar in 1988. In 2011,
the Loma Linda Veterans Administration Medical Hospital diagnosed him with
Alzheimer’s type dementia, and he began receiving treatment for his condition in 2015.
He is currently 77 years old.
Between late 2014 and early 2017, the State Bar brought five separate disciplinary
charges against Saba. The charges alleged various ethical violations, such as filing
frivolous cases, and failing to pay and report sanctions totaling over $50,000. Ultimately,
the State Bar stayed those charges pending the resolution of his mental competency
hearing under section 6007.
B. Saba’s State Bar Hearing
The California Supreme Court holds the exclusive power to disbar, suspend, or
place attorneys on inactive status, but the State Bar acts as the court’s administrative arm
in such matters. (In re Rose (2000) 22 Cal.4th 430, 438; Cal. Const., art. VI, § 9.) To
carry out that work, the State Bar established the State Bar Court to conduct regulatory
3
and disciplinary proceedings and provide recommendations to the California Supreme
Court. (See Cal. Rules of Court, rule 9.12; In re Attorney Discipline System (1998) 19
Cal.4th 582, 598.)
Section 6007 sets out the various grounds upon which the State Bar Court may
order the involuntary inactive enrollment of an attorney. As relevant here, those reasons
include a finding that the attorney is unable to competently perform their duties or is
unable to practice without substantial threat of harm to the interests of their clients or the
public “because of mental infirmity or illness.” (§ 6007, subd. (b)(3).)
In January 2017, the State Bar Court judge found probable cause to investigate
Saba’s competency to practice law under section 6007, subdivision (b)(3). After
appointing Virgo to defend Saba, the judge appointed a psychologist, Dr. Craig Lareau,
to conduct an independent medical examination of Saba. Following the examination, Dr.
Lareau submitted a 16-page report in which he concluded Saba was “unable to practice
law without substantial threat of harm to the interests of his clients or the public” due to
“substantial neurocognitive deficits,” including poor memory function and difficulty
learning and assimilating new information. In response, Saba submitted written
comments objecting to Dr. Lareau’s evaluation and conclusions.
Saba’s hearing took place on December 1, 2017. The Office of Chief Trial
Counsel called Dr. Lareau as a witness and submitted into evidence his report, the results
of the tests he administered on Saba, and portions of Saba’s medical record. Although
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Virgo represented Saba at the hearing, the judge allowed Saba to act as co-counsel, and in
that capacity he cross-examined Dr. Lareau.
In a written statement of decision, the judge found Dr. Lareau’s opinion was
supported by clear and convincing evidence. The judge observed that Dr. Lareau had
evaluated Saba over six and a half-hours and had conducted extensive functional testing.
He also noted that Saba’s medical records revealed that he had been complaining to his
medical providers of forgetfulness since 2011.
The judge highlighted the following passage in Dr. Lareau’s report: “On a
humanistic note, it is important to remember that the neurocognitive difficulties Mr. Saba
is experiencing are beyond his control to change. It must be frustrating for him to have
his professional identity as a lawyer challenged by the current process. He knows he has
had memory difficulties for several years, and he states he has been trying to complete his
current cases for an extended time. He realizes that his cognitive difficulties would likely
get worse over time. Unfortunately, he has difficulty recognizing how significant his
cognitive deficits have become, in part because he does not want it to be true. To accept
that this is now his reality will thrust him unwillingly into another stage of life, where he
can no longer be the same provider he has been over the last 30 years. It may be a
difficult transition for him to make from a psychological perspective.”
The judge concluded his decision by observing that Saba struck him as “a very
intelligent man . . . [who] has been a good and aggressive advocate for his clients for the
bulk of his many years of practice.” However, because of his medical condition and
5
“through no fault of his own, [Saba’s] abilities and reliability as an attorney have
gradually eroded to the point where he is no longer able to practice law without
substantial threat of harm to the interests of his clients and the public. Accordingly and
with considerable sadness, [I find] that an order pursuant to section 6007(b)(3) is both
appropriate and necessary.”
Following his placement on inactive status, Saba unsuccessfully pursued several
strategies to challenge the result of his hearing. He sought review of his status
determination within the State Bar; sued the parties involved in the hearing in state court;
lodged a complaint against Dr. Lareau with the California Board of Psychology; and filed
a lawsuit in the Central District of California alleging the defendants engaged in racial
discrimination, which the court dismissed as frivolous.
C. Saba’s Claims Against Virgo and Summary Judgment
On May 10, 2018, Saba filed this lawsuit, his second state court action, in which
he sought over $1 million in compensatory damages as well as punitive damages. He
asserted eight causes of action against his former attorney—(1) violation of constitutional
due process under both state and federal constitutions; (2) racial discrimination in
violation of 42 U.S.C. § 1983; (3) unfair business practices (Bus. & Prof. Code, § 17200
et seq.); (4) breach of fiduciary duty; (5) breach of contract; (6) fraud; (7) intentional
infliction of emotional distress; and (8) professional negligence.
6
Saba alleged Virgo had conspired with the State Bar to deprive him of his license.
He claimed Virgo was appointed based on the “understanding” that he would “follow the
State Bar’s orders of what to do and what not to do.”
According to Saba, Virgo secretly worked with the prosecutor and the State Bar to
obtain irrelevant medical records without his consent, appoint an unqualified medical
examiner (Dr. Lareau) to provide a false opinion, and allow his examination to last six
and a half-hours when the order stated it could not exceed six hours. Saba alleged Virgo’s
performance fell below professional standards when he failed to raise sufficient
objections to Dr. Lareau’s testimony during the hearing and failed to conduct additional
discovery and depositions, which, Saba claims, would have “discovered admissible
evidence to defeat the charges raised by the State Bar.”
On July 7, 2021, Virgo moved for summary judgment. Although Saba did not
include Virgo’s motion in the appellate record, we are able to review the trial judge’s
ruling because the record does contain the separate statement of undisputed facts and
declarations Virgo submitted to support his motion.
As to Saba’s first two causes of action—violation of due process and racial
discrimination—Virgo argued he is not a government attorney and was not acting under
color of state law when he represented Saba. In support, he submitted his own declaration
stating he was a private attorney, as well as the declaration of his attorney, Frances
O’Meara, stating the same thing. He also submitted an order from the Central District
7
dismissing Saba’s federal case against Virgo and the other defendants, in which the court
concluded that Virgo was “not a state actor.”
As to the remaining six causes of action, Virgo argued there was no evidence to
show (1) that he had conspired with anyone from the State Bar to deprive Saba of his
license or (2) that Saba suffered any injury or damages. In support, he submitted Saba’s
discovery responses and portions of his deposition testimony in which he admitted he had
no documentary or testimonial evidence of a conspiracy. Virgo also submitted evidence
Saba had not been employed for a number of years and no longer wished to practice law.
He submitted a letter from August 2017, in which Saba told Dr. Lareau, “I made it clear
to you and to this Honorable Court that (1) I do not want to practice law in this country;
(2) that I have not taken a new case in 2 to 3 years,” and that all he wanted to do was
complete a case he had taken pro bono because he didn’t want to abandon a client who
couldn’t afford legal services.
Virgo also submitted the transcript of Saba’s closing statements in his State Bar
hearing in which he told the judge he no longer wanted to practice law and was
effectively retired anyway, with the exception of the pro bono case. Saba said, “This is
my first time facing any charges by the State Bar. I do not wish to practice law anymore,
but my main problem is this one pro bono case that’s been hanging for years. My client
does not have any money. I have tried to find other attorneys to take over. Mr. Virgo also
helped out, talked to at least five lawyers. Nobody wants to take the case over. [¶] I feel
that I’m at the end of settling this case and, based on my 30 years’ experience, I think it
8
should be resolved in one year. I don’t mind signing a stipulation that I’ll be out of the
practice if I’m given the year to finish this case.”
In support of his opposition to the summary judgment motion, Saba submitted his
own declaration. Regarding the first two claims based on federal law, Saba declared
Virgo had “acted under color of law” when he discriminated against him on the basis of
race and denied him equal protection of the laws. In his separate statement of disputed
material fact, Saba argued Virgo “was carrying out a governmental function” at his State
Bar hearing. As proof of a conspiracy and of Virgo’s deficient performance, Saba
repeated in his declaration the allegations of conspiracy from his complaint. In response
to Virgo’s evidence that he was effectively retired and no longer wished to practice law
for a salary, Saba argued his previous statements were irrelevant.
On September 21, 2021, San Bernardino County Superior Court Judge John M.
Tomberlin held a hearing on the summary judgment motion and announced his tentative
decision to grant the motion. He found that Virgo had carried his burden of showing Saba
could not establish at least one element of his claims and Saba had not carried his burden
of raising a triable issue of material fact in response. The parties submitted on the
tentative opinion, and the judge granted summary judgment in Virgo’s favor.
9
II
ANALYSIS
A. Standard of Review
Summary judgment is properly granted when “all the papers submitted show that
there is no triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) We review a grant of
summary judgment de novo and decide independently whether the facts not subject to
triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v.
Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.)
When a defendant moves for summary judgment on a claim for which the plaintiff
would have the burden of proof at trial by a preponderance of the evidence, the defendant
may, but need not, present evidence that conclusively negates an element of the
plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853
(Aguilar).) Alternatively, the defendant may present evidence to “show[ ] that one or
more elements of the cause of action . . . cannot be established” by the plaintiff. (Code
Civ. Proc., § 437c, subd. (p)(2); see Aguilar, at p. 853.) And a defendant can make that
showing by “present[ing] evidence that the plaintiff does not possess, and cannot
reasonably obtain, needed evidence—as through admissions by the plaintiff following
extensive discovery to the effect that he has discovered nothing.” (Aguilar, at p. 855; see
also Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 110 [“Such evidence may consist
10
of the deposition testimony of the plaintiff'’s witnesses, the plaintiff’'s factually devoid
discovery responses, or admissions by the plaintiff in deposition or in response to
requests for admission that he or she has not discovered anything that supports an
essential element of the cause of action”].)
Once the defendant clears this initial hurdle, the burden shifts to the plaintiff to
demonstrate a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 849-851.)
The plaintiff does so by producing evidence that “would allow a reasonable trier of fact
to find the underlying fact in favor of the party opposing the motion in accordance with
the applicable standard of proof.” (Id. at p. 850.)
We review the trial court’s ruling on a summary judgment motion de novo,
liberally construing the evidence in favor of the party opposing the motion and resolving
all doubts about the evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460.)
B. Virgo Is Entitled to Summary Judgment
Saba contends the judge erred in granting summary judgment in Virgo’s favor. We
disagree.
Virgo’s approach to summary judgment was to pinpoint elements common to
certain claims and demonstrate that Saba lacked evidence to prove those elements.
Starting with the due process and discrimination claims, Virgo argued Saba could not
prove he was acting under color of state law. Proof of state action—that the defendant
was acting under color of state law when he violated the plaintiff’s constitutional rights—
11
is a necessary element of both claims. (See West v. Atkins (1988) 487 U.S. 42, 48; Parratt
v. Taylor (1981) 451 U.S. 527, 535-537.)
To support his argument, Virgo submitted declarations from himself and his
attorney stating that during the State Bar hearing he represented Saba in his capacity as a
private attorney. This evidence was sufficient to carry his initial burden as a moving
defendant. An attorney appointed to represent a client in a state proceeding does not
become a state actor by participating in the proceeding. (See, e.g., Jones v. Whisenand
(2017) 8 Cal.App.5th 543, 559 [“It is well established that public defenders performing a
lawyer’s traditional functions as counsel to a defendant do not act under color of state
law”].)
As to the remaining six causes of action, Virgo argued that Saba could not prove
he suffered damages nor could he prove the existence of a conspiracy. Proof that the
defendant’s conduct resulted in damages is a necessary element of each claim. (See State
of Cal. ex rel. Metz v. CCC Information Services, Inc. (2009) 149 Cal.App.4th 402, 419
[conspiracy requires proof of “the damage resulting from [the wrongful] acts”]; Coscia v.
“erroneous evidentiary ruling requires reversal only if ‘there is a reasonable probability
that a result more favorable to the appealing party would have been reached in the
absence of the error’”].)
15
III
DISPOSITION
We affirm the judgment. In the interests of justice, the parties shall bear their own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
McKINSTER Acting P. J.
FIELDS J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly granted summary judgment in favor of the defendant attorney because the plaintiff failed to present evidence creating a triable issue of material fact regarding his claims of conspiracy, damages, or state action.
Issues
Did the trial court err in granting summary judgment on the plaintiff's claims of constitutional violations and discrimination?
Did the trial court err in granting summary judgment on the plaintiff's claims of conspiracy, breach of duty, fraud, and professional negligence?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude the trial court correctly determined that Saba had not presented evidence sufficient to go to trial on his claims against his former attorney and therefore affirm the judgment.”
“An attorney appointed to represent a client in a state proceeding does not become a state actor by participating in the proceeding.”