IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SEYED MOSHEN SHARIFI TAKIEH M.D., Plaintiff/Appellant,

v.

MICHAEL O’MEARA M.D., et al., Defendants/Appellees.

No. 1 CA-CV 20-0290 

Appeal from the Superior Court in Maricopa County

No. CV 2018-001473

The Honorable Christopher T. Whitten, Judge

AFFIRMED

COUNSEL

William A. Miller PLLC, Scottsdale

By William A. Miller, Stephen D. Smith

Counsel for Plaintiff/Appellant

Papetti Samuels Weiss LLP, Scottsdale

By Jared L. Sutton, Randall S. Papetti

Counsel for Defendants/Appellees, Michael O’Meara M.D., James Del Giorno 

M.D., Tri-City Cardiology

Coppersmith Brockelman PLC, Phoenix

By Andrew S. Gordon, Katherine L. Hyde, Karen C. Owens

Counsel for Defendants/Appellees Janice Dinner, Michael O’Connor M.D.

FILED 8-10-2021
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

2

OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which 

Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Dr. Seyed Mohsen Sharifi Takieh (“Sharifi”) appeals the 

superior court’s entry of summary judgment in favor of Dr. James Del 

Giorno and Janice Dinner on his defamation claims. He also challenges two 

of the court’s discovery rulings and its award of attorneys’ fees against him. 

We conclude the court properly entered summary judgment and, because 

statements derived from a peer-review process are privileged, the superior 

court properly precluded Sharifi’s discovery requests under A.R.S. § 36-

445.01. We also affirm the court’s attorneys’ fees award.

BACKGROUND

¶2 For more than a decade, Sharifi, a cardiologist, maintained 

active medical staff membership and clinical privileges at Banner Baywood 

Medical Center (“Baywood”) in Mesa. His good standing and affiliation 

with Baywood ended, however, when Baywood’s Medical Executive 

Committee (“MEC”), a peer-review body, voted to restrict his practice and 

the Banner Health Board of Directors voted to revoke his clinical privileges.

¶3 Amidst these adverse actions, Sharifi filed a complaint 

alleging various claims against several individuals involved in the peerreview process. The defendants moved to dismiss the complaint, primarily 

arguing they were immune from liability for any claims arising out of peerreview proceedings. See A.R.S. § 36-445.02 (A), (B) (immunizing from 

“liability for civil damages or legal action” any participant in a medical 

peer-review proceeding who “makes a decision or recommendation” or 

“furnishes any records, information, or assistance” to “medical staff or 

review committee or related organization”).

¶4 The superior court granted the motions to dismiss “in large 

part,” reasoning that the defendants were immune from liability under 

A.R.S. § 36-445.02 for actions taken and statements made during peer-
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

3

review proceedings.1 With respect to the remaining claims, the court

allowed Sharifi to file an amended complaint. In the amended complaint, 

Sharifi alleged claims against Del Giorno and Dinner for defamation, 

injurious falsehood, intentional interference with contract, and conspiracy. 

Sharifi premised each claim on the same two assertions: (1) Del Giorno, 

Baywood’s chair of cardiology, made damaging false statements when he 

told another cardiologist that Sharifi “is an idiot” who administered blood 

thinner “to an obvious case of intracerebral hemorrhage,” and (2) Dinner, 

Banner Health’s senior associate general counsel, composed “letters and 

various other documents and communications” containing “defamatory 

material . . . designed to destroy his reputation in the medical community.” 

¶5 In their answers, neither defendant denied making the 

alleged statements. Del Giorno, however, asserted that to the extent he 

made any assertions of fact, they were true, and that otherwise, his 

statements were merely opinion, and therefore not actionable. Dinner, in 

turn, maintained that she was immune from liability because her actions 

“were done as part of and within” protected peer-review proceedings. See 

A.R.S. § 36-445.02 (A), (B). 

¶6 As the litigation progressed, Sharifi moved to compel Dinner 

to disclose, among other things: (1) Baywood’s investigation of sexualharassment allegations made against him, (2) his personnel/credentialing

file, and (3) correspondence Dinner sent or received concerning him. After 

oral argument, the court ruled that documents in Sharifi’s file pertaining to 

his credentials and the sexual-harassment allegations were protected from 

disclosure by the peer-review privilege and Dinner was not required to 

create a privilege log listing them. With respect to the request for any 

documents/communications Dinner authored or received concerning

Sharifi, the court ordered Dinner to produce the documents or a privilege 

log identifying “any that are claimed to be privileged.”

¶7 After the close of discovery, Dinner and Del Giorno moved 

for summary judgment. In response, Sharifi moved for the appointment of 

a special discovery master to review the documents Dinner had withheld, 

asserting that Dinner had failed to comply with the disclosure order. As 

detailed by Sharifi, Dinner withheld all the documents he had sought and 

had failed to produce a log, saying only that she had reviewed her emails

and determined that all the requested correspondence constituted 

protected peer-review materials. Attached to his motion, Sharifi disclosed, 

1 On appeal, Sharifi does not challenge the superior court’s dismissal 

order.
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

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for the first time, the affidavits of two former Baywood employees: Leslie 

Wilson, a cardiac sonographer, and Dr. Ava Rose, an internist. Wilson 

avowed that she witnessed Dinner speaking on a cell phone and overheard 

her make several disparaging remarks about Sharifi, including that he is a 

terrible doctor, a danger to his patients, and an idiot. Rose, in turn, avowed 

that she overheard three physicians discussing their testimony against 

Sharifi in the peer-review proceedings and recounted that they said Dinner 

had encouraged them to make false statements and assured them that they

would have immunity for their participation. In response, Dinner moved to 

strike both affidavits as untimely. 

¶8 The superior court denied Sharifi’s motion for appointment 

of a special discovery master, finding no evidence to suggest that any of the 

correspondence at issue “originated outside the peer review process.” The 

court also struck the Rose and Wilson affidavits as untimely. 

¶9 After full briefing, the superior court entered summary 

judgment in favor of Del Giorno and Dinner. The court explained that even 

assuming Del Giorno made the alleged statements to his fellow 

cardiologist, there was no dispute that Sharifi had, in fact, administered

blood thinner to a patient who had an intracerebral hemorrhage. Further, 

concluding that the “characteriz[ation]” of Sharifi’s conduct “as idiotic” 

was “nothing more” than a “subjective impression,” the court found Del 

Giorno’s alleged “assessment” was not an actionable statement of fact.

Turning to the allegations against Dinner, the court found that Sharifi had 

failed to produce any admissible evidence showing that Dinner “made any 

comments about him, defamatory or otherwise, outside the context of 

[protected] peer review activities.” 

¶10 Having prevailed on summary judgment, Dinner requested 

an award of attorneys’ fees under A.R.S. § 12-349, asserting that Sharifi 

brought the defamation claim against her without substantial justification 

and primarily for harassment. The court agreed and awarded Dinner 

$128,878.00 in attorneys’ fees and $1,444.92 in taxable costs, finding no 

evidence to suggest that when Sharifi filed his amended complaint, he “had 

a good faith belief” that Dinner had made any defamatory statements about 

him that were not protected by the peer-review privilege. The court 

reduced its rulings to a final judgment, and Sharifi timely appealed. 
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

5

DISCUSSION

I. Summary Judgment Rulings

¶11 “The court shall grant summary judgment if the moving party 

shows that there is no genuine dispute as to any material fact and the 

moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 

56(a). In reviewing a grant of summary judgment, we view the facts and the 

reasonable inferences to be drawn from those facts in the light most 

favorable to the non-moving party and will affirm “if the evidence 

produced in support of the defense or claim has so little probative value 

that no reasonable person could find for its proponent.” State Comp. Fund v. 

Yellow Cab Co. of Phoenix, 197 Ariz. 120, 122, ¶ 5 (App. 1999). “We review de 

novo the [superior] court’s application of the law and its determination 

whether genuine issues of material fact preclude summary judgment.” Id.

A. Defamation Claim Against Del Giorno

¶12 Sharifi argues the court erred in dismissing his defamation 

claim against Del Giorno because Del Giorno’s statements about him 

conveyed assertions of fact that were both false and damaging. 

¶13 The right to free speech, enshrined in the First Amendment, 

is not absolute ―“[s]ociety has a pervasive and strong interest in preventing 

and redressing” defamatory speech. Milkovich v. Lorain Journal Co., 497 U.S. 

1, 22 (1990) (citation and internal quotation omitted). Nonetheless, because 

“the expense of defending a meritless defamation case” can have “a chilling 

effect on First Amendment rights,” Read v. Phoenix Newspapers, Inc., 169 

Ariz. 353, 357 (1991), “the superior court must act as gatekeeper protecting 

the right to free speech” from encroachment. Sign Here Petitions LLC v. 

Chavez, 243 Ariz. 99, 102, ¶ 1 (App. 2017); see also Yetman v. English, 168 Ariz. 

71, 79 (1991) (“Given the rigorous scrutiny required by the first 

amendment,” the court must “carefully examine every alleged defamatory 

statement . . . to ensure that first amendment concerns are protected.”).

¶14 To support a claim for defamation, a statement about a 

private figure on a matter of private concern “must be false” and must bring 

the subject of the statement “into disrepute, contempt, or ridicule” or 

impeach the subject’s “honesty, integrity, virtue, or reputation.” Turner v. 

Devlin, 174 Ariz. 201, 203–04 (1993) (quoting Godbehere v. Phoenix

Newspapers, Inc., 162 Ariz. 335, 341 (1989)). While any disparaging statement 

can cause reputational harm, a true statement cannot support a claim for 

defamation. Read, 169 Ariz. at 355.
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Opinion of the Court

6

¶15 In fulfilling its gatekeeping role, the superior court first must 

determine “whether, under all the circumstances, a statement is capable of 

bearing a defamatory meaning.” Yetman, 168 Ariz. at 79 (citing Restatement 

(Second) of Torts § 614 (1977)). As a matter of law, a statement is not 

actionable if it is comprised of “loose, figurative, or hyperbolic language” 

that cannot reasonably be interpreted as stating or implying facts 

“susceptible of being proved true or false.” Milkovich, 497 U.S. at 21. In a 

case such as this, “[t]he key inquiry is whether the challenged expression, 

however labeled by defendant, would reasonably appear to state or imply 

assertions of objective fact.” Yetman, 168 Ariz. at 76 (citation and internal 

quotation omitted). In this determination, the court should “‘consider the 

impression created by the words used as well as the general tenor of the expression, 

from the point of view of a reasonable person’ at the time the statement was 

uttered and under the circumstances it was made.” Sign Here Petitions, 243 

Ariz. at 105, ¶ 21 (quoting Yetman, 168 Ariz. at 76). 

¶16 While statements cast as subjective beliefs are generally 

insulated from defamation liability, “statements of opinion are actionable 

when they imply a false assertion of fact.” Turner, 174 Ariz. at 208 (internal 

quotation omitted and emphasis added). In other words, if a statement of 

opinion may be proven false, “it is actionable as defamatory,” Dube v. Likins, 

216 Ariz. 406, 419, ¶ 46 (App. 2007), but a statement is not actionable if it

does not present “the kind of empirical question a fact-finder can resolve,” 

Yetman, 168 Ariz. at 81. Finally, “[t]o defeat a defendant’s motion for 

summary judgment in a defamation case, the plaintiff must present 

evidence ‘sufficient to establish a prima facie case with convincing clarity.’”

Sign Here Petitions, 243 Ariz. at 104, ¶ 14 (citation omitted).

¶17 With these principles in mind, we consider Del Giorno’s 

alleged statements. To prove his defamation claim against Del Giorno, 

Sharifi relied primarily on the declaration of Dr. Suzanne Sorof, a 

cardiologist. As detailed in her brief statement, Sorof saw and heard Del 

Giorno talking to another cardiologist through a partially open door. She 

recounted that Del Giorno stated: “Sharifi is an idiot. We finished his 

venous career here and won’t let it continue anywhere at Banner. He gave 

tPA to an obvious case of intracerebral hemorrhage.” From Del Giorno’s 

tone and demeanor, Sorof concluded that he was “angry.” 

¶18 Addressing the alleged falsity of Del Giorno’s statements, 

Sharifi neither denied that he administered blood thinner to the patient nor 

that she had an intracerebral hemorrhage. He argued instead that he was 

not an “idiot” and that the patient’s hemorrhage was not obvious at the 

time. In support, he asserted that he had an expert who would testify that 
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

7

a CT scan of the patient “complete[ly] negated” the “possibility” of a 

hemorrhage and that “no physician could interpret [the patient’s] chart – at 

the time [] Sharifi administered tPA – in such a manner as to indicate that 

[the patient’s] condition was ‘obvious.’” 

¶19 Viewed in context, Del Giorno’s “angry” statement to a fellow 

physician that Sharifi is “an idiot” clearly did not suggest that Sharifi, a 

board-certified specialist in cardiovascular medicine, suffers from an 

extreme intellectual disability, as the term “idiot” was historically used in 

both medical and educational settings. See Idiot, Merriam-Webster, 

https://www.merriam-webster.com/dictionary/idiot (last visited August 

4, 2021). Instead, consistent with the modern understanding of the word

and common usage, Del Giorno was expressing his belief that Sharifi acted 

foolishly. See id. (defining “idiot” as “a foolish or stupid person”). Because 

assessments like these of foolishness or stupidity are subjective 

determinations, there is no means to establish their truth or falsity. In other 

words, a statement that someone is an idiot is inherently a statement of 

opinion, not objective fact. See Steinhausen v. HomeServices of Nebraska, Inc., 

857 N.W.2d 816, 828 (Neb. 2015) (concluding that the term “idiot” is a 

“subjective impression[]” that “cannot be defamatory”). Therefore, we 

agree with the superior court that Del Giorno’s “idiot” statement is not 

actionable as a matter of law because it does not present “the kind of 

empirical question a fact-finder can resolve.” Yetman, 168 Ariz. at 81.

¶20 Turning to Del Giorno’s description of the patient’s

hemorrhage as “obvious,” we apply a similar analysis. Whether something 

is easily perceived or understood is a matter of opinion.

See Obvious, Merriam-Webster, https://www.merriamwebster.com/dictionary/obvious (last visited August, 2021) (defining 

“obvious” as “easily discovered, seen, or understood”). Had Del Giorno 

told his colleague that the patient’s hemorrhage was diagnosed, 

documented, or otherwise confirmed, he would have been stating a matter 

of objective fact, provable as true or false. Instead, he expressed his belief

that the hemorrhage should have been readily apparent. To refute Del 

Giorno’s assertion, Sharifi asserted his expert would testify that a 

reasonable doctor would not have detected the patient’s hemorrhage before 

administering a blood-thinner medication. The nature of the opinion

evidence Sharifi asserted he could offer to prove defamation belies one of the 

tort’s requisite elements—the utterance of a statement of fact. Moreover, as 

Del Giorno points out, the overall impression of his words, including his 

alleged angry tone and use of the term “idiot,” would not lead a reasonable 

listener to believe that he was making a statement of verifiable, medical fact.

Because the record on summary judgment lacked clear and convincing 
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Opinion of the Court

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evidence that a reasonable listener could have understood Del Giorno’s 

“obvious” statement as conveying an objective fact, the superior court 

properly entered summary judgment dismissing Sharifi’s defamation claim

against him.

B. Defamation Claim Against Dinner

¶21 Sharifi also challenges the dismissal of his defamation claim 

against Dinner, contending that he failed to carry his burden to establish a 

prima facie case only because the superior court erroneously (1) relieved 

Dinner of her obligation to disclose email communications concerning him, 

and (2) struck the Wilson and Rose declarations. 

1. Disclosure Ruling Regarding Emails

¶22 After the superior court made its initial disclosure order, 

Dinner responded that she had reviewed her email correspondence and 

found 738 emails concerning Sharifi. Although Dinner determined most of 

the emails were privileged attorney-client communications, she did not 

create a privilege log because she concluded all the emails were prepared 

in connection with peer-review proceedings that she contended were 

protected from discovery by A.R.S. § 36-445.01(A). Finding no evidence to

“suggest that any of the 738 documents at issue originated outside the peer 

review process,” the court denied Sharifi’s request for the appointment of a 

special discovery master to review each of the emails in camera.

¶23 On appeal, Sharifi asserts that the superior court’s approach

“allow[ed] Dinner to unilaterally determine that the peer review protection 

applied to large categories of unidentified documents (including her own 

personal emails).” In other words, without a privilege log or in camera 

review of the documents, Sharifi argues he had no “means to challenge” 

Dinner’s contention that the emails were, in fact, prepared or received in 

connection with peer-review proceedings. 

¶24 Although superior courts have broad discretion in resolving 

discovery disputes, Am. Family Mut. Ins. v. Grant, 222 Ariz. 507, 511, ¶ 11 

(App. 2009), whether a disclosure obligation exists or a privilege applies is 

a question of law that we review de novo. Solimeno v. Yonan, 224 Ariz. 74, 

77, ¶ 9 (App. 2010); Ledvina v. Cerasani, 213 Ariz. 569, 571, ¶ 3 (App. 2006). 

Under Arizona Rule of Civil Procedure 26(b)(1), “[p]arties may obtain 

discovery regarding any nonprivileged matter that is relevant to any 

party’s claim or defense and proportional to the needs of the case.” 
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

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¶25 State law requires peer review of physicians in Arizona 

hospitals. To “reduc[e] morbidity and mortality” and improve “the care of 

patients,” each Arizona hospital or surgical center “shall require that 

physicians admitted to practice in the hospital or center organize into 

committees . . . to review the professional practices within the hospital or 

center,” including “the preventability of complications and deaths.” A.R.S. 

§ 36-445. By statute, the participants in these mandated peer-review 

committees are immune from liability “to any person who is denied the 

privilege to practice in a hospital or center or whose privileges are 

suspended, limited or revoked.” A.R.S. § 36-445.02(B). As further 

protection, “[a]ll . . . materials prepared in connection with” peer-review 

proceedings are privileged and confidential and therefore “not subject to 

discovery.” A.R.S. § 36-445.01(A).

¶26 “Arizona courts have recognized that the confidentiality of 

peer review committee proceedings is essential to achieve complete 

investigation and review of medical care.” Humana Hosp. Desert Valley v. 

Superior Ct., 154 Ariz. 396, 400 (App. 1987). Because peer-review 

deliberations would be substantially compromised “if they were subject to 

the discovery process,” the peer-review privilege must remain inviolate. Id.; 

Goodman v. Samaritan Health Sys., 195 Ariz. 502, 509, ¶ 27 (App. 1999) (“If 

effective peer review is to be achieved, and the statutory goal [of reducing 

morbidity and mortality and improving patient care] realized, peer 

reviewers and their hospitals must have some protection against money 

damage claims.”).

¶27 While materials created outside the peer-review process that

“do not contain references” to peer-review proceedings are discoverable, 

“the internal workings and deliberative process” of peer-review

committees are “immune from discovery.” Humana, 154 Ariz. at 403.

Accordingly, “a plaintiff is not entitled to engage in a fishing expedition to 

ascertain what information was considered by the peer review committee 

where such information might reveal the deliberative process of the 

participants.” Yuma Reg’l Med. Ctr. v. Superior Ct., 175 Ariz. 72, 77 (App. 

1993). 

¶28 We find Yuma Regional particularly instructive here. In that 

case, the plaintiffs sought information concerning the hospital’s peerreview proceedings, including lists identifying each participant and each 

document submitted. Id. at 74. After the superior court ordered the hospital 

to furnish the plaintiffs with a redacted copy of the requested information 

and “to provide the court with a redacted copy and an original of the same” 

for in camera review, the hospital petitioned this court for relief. Id. at 74, 
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Opinion of the Court

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77. On special action review, we concluded the court’s order that the 

hospital disclose the names of the peer-review participants “violate[d] the 

peer review privilege.” Id. at 75–76. We further found that “requiring 

submission” of the requested information to the court, “in any form,” also 

violated the privilege. Id. at 77.

¶29 Sharifi argues that, at a minimum, Dinner should have been 

required to produce a log identifying the sender and recipient of each email 

or other document she withheld on peer-review grounds. As Banner’s 

general counsel, Dinner provided legal advice concerning the peer-review 

proceedings to both potential witnesses and the MEC members. To 

illustrate this point, the Rose declaration that Sharifi offered, though 

ultimately stricken, reflects that multiple physicians spoke with Dinner and 

received her legal advice regarding any potential liability for participating 

as witnesses in the peer-review proceedings. Because the “element of 

confidentiality is essential” to ensure a candid peer review, Humana, 154 

Ariz. at 401, and given the overriding public interest in peer-review 

proceedings, we conclude that the superior court did not err by finding the 

peer-review privilege exempted Dinner from having to submit a log that 

would identify with whom she exchanged correspondence related to the 

peer-review process.

2 Sun Health Corp. v. Myers, 205 Ariz. 315, 319, ¶ 13 

(App. 2003) (“[T]he identity of the participants in a peer review proceeding 

is not discoverable.”). 

¶30 Sharifi further contends that the superior court erred by 

denying his request to appoint a special discovery master to review the 

documents Dinner withheld to confirm that, as she asserted, each of the 

communications was made in connection with peer-review proceedings. As 

noted, in Yuma Regional, this court vacated a ruling mandating in camera 

review by the superior court of documents purportedly privileged by peer 

2 Sharifi also contends that Dinner waived the peer-review privilege 

with respect to all peer-review documents by submitting five documents 

related to the peer-review process in support of her motion for summary 

judgment. We review de novo whether a party has waived a privilege. See 

Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 253–54, ¶ 10 (2003). The 

documents at issue are three letters addressed to Sharifi from a Baywood 

medical officer and two letters from Sharifi’s attorney to Dinner. While 

these documents were unquestionably prepared in connection with the 

peer-review process, they were already in Sharifi’s possession, and his 

contention that their “disclosure” waived the peer-review privilege in its 

entirety is wholly without merit. 
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

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review. Sharifi offers no argument why that principle would not likewise 

bar in camera review by a discovery master. Without good cause for 

appointment of a special master, the court did not abuse its discretion by 

denying Sharifi’s request. See Ariz. R. Civ. P. 53(a)(1).

3

2. Disclosure Ruling Regarding the Wilson and Rose 

Declarations 

¶31 Unable to rely on any documents protected by the peerreview process, Sharifi’s claim against Dinner was based solely on 

assertions recounted in the declarations of Wilson and Rose, which he 

offered in response to Dinner’s motion for summary judgment. The 

superior court struck both declarations as untimely, and Sharifi argues on 

appeal it erred in doing so.

¶32 The superior court’s scheduling order required the parties to 

disclose their non-expert witnesses by March 1, 2019 and provide any 

supplemental disclosure by June 28, 2019. In his initial disclosure statement, 

Sharifi identified Wilson as a person possessing information relevant to the 

case. Specifically, Sharifi disclosed that Wilson, a “former echo lab 

technician” at Baywood, “overheard disparaging remarks.” This brief and 

vague description neither identified the individual who made the 

comments Wilson purportedly overheard nor revealed the substance of the

statements, as the rules require. See Ariz. R. Civ. P. 26.1(a)(3) & (4).

¶33 As the litigation progressed, Sharifi failed to provide any 

supplemental disclosure regarding Wilson, or any disclosure regarding 

3 Although Sharifi makes a fleeting reference to unspecified 

documents purportedly located in his credentialing file, asserting they are 

not necessarily privileged, he fails to develop that argument and does not 

address whether his credentialing file was used in a peerreview/credentialing process, as the superior court found. See Humana, 154 

Ariz. at 402 (“[B]ecause the statutes expressly refer to the confidentiality of 

peer review of applications for staff privileges and because of the public 

interest in such confidentiality, we hold that the peer review privilege 

protects the credentialing process.”). Having failed to present a reviewable 

argument, Sharifi has waived any issue regarding the disclosure of his 

credentialing file. See ARCAP 13(a)(7).
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Rose,4 until he filed his request for the appointment of a special discovery 

master, approximately two months after the disclosure deadline. In 

reviewing Dinner’s motion to strike the Wilson and Rose declarations, the 

superior court found the declarations went “well beyond any previous 

disclosure[s],” and in the absence of a showing of good cause, the court 

struck them as untimely. 

¶34 Rule 26.1(a)(3) requires a party to identify each witness it may 

use at trial. The party also must provide “a description of the substance—

and not merely the subject matter—of the testimony sufficient to fairly 

inform the other parties of each witness’ expected testimony.” Ariz. R. Civ. 

P. 26.1(a)(3). When a party has failed to timely disclose the required 

information, it “may not use the information, witness, or document as 

evidence at trial” unless “the court specifically finds that such failure 

caused no prejudice or orders otherwise for good cause.” Ariz. R. Civ. P. 

37(c)(1). Because the superior court is in a better position to determine 

whether “a disclosure violation has occurred in the context of a given case”

and, if so, its “practical effect,” we uphold its disclosure rulings absent a

clear abuse of discretion. Solimeno, 224 Ariz. at 77, ¶ 9.

¶35 As detailed in his complaint, Sharifi broadly alleged that 

Dinner sent or received communications that included defamatory 

statements about him. Although Sharifi had disclosed that Wilson had 

some information about alleged defamatory statements, he failed to 

disclose the substance of the statements or who made them. Given the 

framing of Sharifi’s defamation claim against Dinner, his disclosures failed 

to provide her with notice that any witness directly overheard her making 

defamatory statements or what those statements were. Moreover, Sharifi 

did not seek leave of the court to use the untimely disclosed declarations by 

submitting an affidavit demonstrating that he disclosed the information “as 

soon as practicable after its discovery.” See Ariz. R. Civ. P. 37(c)(4)(B). On 

this record, the superior court did not abuse its discretion by finding the 

Wilson and Rose declarations untimely and striking them from the record.

Accordingly, because Sharifi failed to present any admissible evidence to 

substantiate his allegations against Dinner, much less any clear and 

convincing evidence, the superior court properly entered summary 

judgment in favor of Dinner on his defamation claim.

4 Sharifi contends he timely disclosed Rose as a witness but referred 

to her as Dr. Rosenblum in prior disclosures. The record reflects that Sharifi 

timely disclosed a 2018 affidavit from a Dr. Rosenblum, but that affidavit 

did not contain any of the allegations made in the Rose affidavit.
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II. Award of Attorneys’ Fees

¶36 Finally, Sharifi challenges the superior court’s award of 

attorneys’ fees to Dinner under A.R.S. § 12-349, arguing his defamation 

claim against her was neither groundless nor brought in bad faith. 

¶37 Under A.R.S. § 12-349(A), the court “shall” assess reasonable 

attorneys’ fees against an attorney or party who, among other things, brings 

a claim without substantial justification. As defined within the statute, a 

claim lacks substantial justification when it is both “groundless” and “not 

made in good faith.” A.R.S. § 12-349(F). While groundlessness is 

determined objectively, bad faith is a subjective determination. Rogone v. 

Correia, 236 Ariz. 43, 50, ¶ 22 (App. 2014). A claim is groundless “if the 

proponent can present no rational argument based upon the evidence or 

law in support of that claim.” Id. (citation and internal quotation omitted).

¶38 In awarding attorneys’ fees under A.R.S. § 12-349, the 

superior court must “set forth the specific reasons for the award.” A.R.S. 

§ 12-350. Because the “purpose of this requirement is to assist the appellate 

court on review[,] . . . the findings need only be specific enough to allow an 

appellate court to test the validity of the judgment.” Bennett v. Baxter Group, 

223 Ariz. 414, 421, ¶ 28 (App. 2010) (internal quotations and citations 

omitted).

¶39 We review a superior court’s application of A.R.S. § 12-349 de 

novo, but we view “the evidence in a manner most favorable to sustaining 

the award” and will affirm unless the superior court’s findings are “clearly 

erroneous.”5 Phoenix Newspapers, Inc. v. Dep’t of Corr., 188 Ariz. 237, 243, 244

(App. 1997). We may affirm the superior court’s ruling “if it is correct for 

any reason apparent in the record.” Forszt v. Rodriguez, 212 Ariz. 263, 265,

¶ 9 (App. 2006).

5 Without citing any authority, Sharifi argues that we should review 

the superior court’s findings de novo because he requested an evidentiary 

hearing and “was denied the opportunity to make a factual record.” This 

contention mischaracterizes the record and is without merit. At oral 

argument on Dinner’s request for attorneys’ fees, the superior court 

expressly invited Sharifi to supplement the record by presenting witness 

testimony or written declarations, and Sharifi responded by saying he

would submit supplemental affidavits. His failure to do so does not, 

somehow, mean he was denied the opportunity to make a factual record.
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

14

¶40 Sharifi first asserts that he brought his defamation claim 

against Dinner in good faith because he believed that the anti-abrogation 

provision in the Arizona Constitution bars peer-review participants from 

invoking statutory immunity under A.R.S. § 36-445.02 when sued for 

defamation. See Ariz. Const. art. XVIII, § 6 (“The right of action to recover 

damages for injuries shall never be abrogated.”). While Sharifi correctly 

notes that prior cases upholding A.R.S. § 36-445.02 against anti-abrogation 

challenges did not consider the statute’s application in defamation actions,

Goodman, 195 Ariz. at 509, ¶ 29 n.9 (limiting the analysis upholding A.R.S. 

§ 36-445.02 against an anti-abrogation challenge to the claims raised, 

explaining that “[a] different analysis might be required if a defamation 

claim were made against an individual peer reviewer”); see also Humana, 

154 Ariz. at 399–400, the superior court ruled early in this litigation (before 

Sharifi filed his amended complaint) that no statement made during the 

peer-review process could be used to prosecute a defamation claim. 

Nonetheless, after receiving that ruling, Sharifi filed an amended complaint 

that alleged defamation against Dinner based primarily on 

communications made during the peer-review process. The superior court 

found that, at that point, Sharifi could not have had a good faith belief that 

any statements she made during the peer-review process could support a 

defamation claim against her.

¶41 The superior court found that, in the end, Sharifi offered no 

admissible evidence that Dinner made defamatory statements about him, 

made no “effort to determine whether [] Dinner actually made admissible 

defamatory statements about him” before filing his amended complaint,

and failed “to withdraw his claim” when confronted with his lack of 

evidence. 

¶42 During oral argument on Dinner’s request for attorneys’ fees, 

the superior court ordered Sharifi to file a signed affidavit setting forth the 

evidentiary basis for his amended complaint. In response, Sharifi submitted 

a declaration avowing that before he filed his amended complaint, several

physicians privately told him that Dinner had made defamatory statements

against him. According to Sharifi, these witnesses refused to execute 

declarations directly attributing the defamatory statements to Dinner

because they feared “retaliation.” Nonetheless, based on these 

conversations, Sharifi avowed he “firmly believed” both that his 

defamation claim against Dinner was “supported by the facts” and that he

“could gather enough evidence to prove” it when he filed his amended 

complaint. To substantiate his avowals, Sharifi also submitted unsigned 

declarations attributed to three Baywood physicians. Although the 
TAKIEH M.D. v. O’MEARA M.D., et al. 

Opinion of the Court

15

declarants each claimed to have heard disparaging remarks about Sharifi, 

none avowed to have heard such remarks directly from Dinner. 

¶43 Having reviewed the record in its entirety, we conclude the 

superior court’s findings are not clearly erroneous. Nothing in the record 

suggests that Sharifi had any admissible evidence to support his 

defamation claim against Dinner at the time he filed his amended 

complaint. Although Sharifi asserts there were “circumstantial reasons for 

believing” that Dinner had made defamatory statements against him, he 

admits that only Wilson avowed that she directly overhead such remarks. 

According to his affidavit, Sharifi relied heavily on Wilson’s account, but 

Wilson did not allegedly overhear Dinner making disparaging remarks 

until months after Sharifi filed his amended complaint, so her account could 

not serve as the factual predicate for that complaint. Moreover, consistent 

with the superior court’s findings, the record does not reflect that Sharifi 

made any attempt to depose any of the individuals he asserts witnessed 

Dinner utter defamatory statements. In asserting that “[t]he only missing 

element was someone who heard Dinner make the statements,” Sharifi fails 

to recognize that such evidence was the necessary factual predicate for his 

defamation claim. In other words, unable to offer evidence that someone 

witnessed Dinner making defamatory statements, Sharifi based his entire 

defamation claim on supposition and speculation. Therefore, on this record, 

the superior court did not err in finding Sharifi’s claim was groundless and 

he pursued it in bad faith, and awarding Dinner her attorneys’ fees under 

A.R.S. § 12-349.

CONCLUSION

¶44 For the foregoing reasons, we affirm. Dinner requests an 

award of her attorneys’ fees under A.R.S. § 12-349. Because Sharifi’s 

defamation claim was groundless and pursued in bad faith, we grant 

Dinner’s request, conditioned upon compliance with ARCAP 21.