Filed 5/21/24 Nowzari v. Torrance Memorial Medical Center CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

FARHAD NOWZARI,

Plaintiff and Appellant,

v.

TORRANCE MEMORIAL 

MEDICAL CENTER et al.,

Defendants and 

Respondents.

 B321862, consolidated with 

B324119

 (Los Angeles County

 Super. Ct. No. 21STCP02300)

ORDER MODIFYING 

 OPINION AND DENYING 

 REHEARING

 NO CHANGE IN THE 

 JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on May 2, 2024, be 

modified as follows:

1. On page 13, footnote 7, after the sentence ending “pursuant 

to that contract,” add the following paragraph:
2

Along similar lines, Nowzari asserts in his 

petition for rehearing that the Medical Executive 

Committee’s failure to object to his decision to pursue 

arbitration under section 809.2 somehow formed a 

“written agreement to submit to arbitration,” 

triggering the CAA’s protections (Code Civ. Proc., § 

1281). We reject this argument, in part because it 

would expand the contract-contingent CAA to apply 

to noncontractual arbitrations and thereby negate 

statutory limits on its applicability.

2. On page 13, immediately following the parenthetical 

citation “(Hongsathavij v. Queen of Angels/Hollywood 

Presbyterian Medical Center (1998) 62 Cal.App.4th 1123, 

1142.),” add as footnote 8 the following footnote, which will 

require renumbering of all subsequent footnotes:

8 Nowzari argues in his petition for rehearing 

that “‘even the appearance of bias’” is enough, but 

the case he relies on for this principle—FCM 

Investments, LLC v. Grove Pham, LLC (2023) 96 

Cal.App.5th 545, 555—was applying the CAA and is 

therefore inapt.

* * *

There is no change in the judgment. 

Appellant’s petition for rehearing is denied. 

——————————————————————————————

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
Filed 5/2/24 Nowzari v. Torrance Memorial Medical Center CA2/2 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION TWO

FARHAD NOWZARI,

Plaintiff and Appellant,

v.

TORRANCE MEMORIAL 

MEDICAL CENTER et al.,

Defendants and 

Respondents.

 B321862, consolidated with 

B324119

 (Los Angeles County

 Super. Ct. No. 

21STCP02300)

APPEAL from a judgment and postjudgment order of the

Superior Court of Los Angeles County, James C. Chalfant, Judge. 

Affirmed. 

Bonne, Bridges, Mueller, O’Keefe & Nichols, Joel Bruce 

Douglas and Edward Idell for Plaintiff and Appellant. 
2

Cole Pedroza, Kenneth R. Pedroza and Cassidy C. 

Davenport for Defendants and Respondents.

* * * * * *

The peer review body of a hospital restricted a urology 

physician’s privileges after three of his patients died in a 

relatively short period of time. That decision was upheld by an 

arbitrator after a hearing, and then by the review board of the 

hospital’s board of trustees. The physician then petitioned for a 

writ of mandate to overturn the review board’s decision, but his 

petition was denied. We conclude that this denial as well as the 

attorney fees awarded as a sanction for the physician’s 

unfounded and unreasonable claims were appropriate. We 

accordingly affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The parties

Farhad Nowzari, M.D. (Nowzari), obtained his medical 

degree in 1994 and is a board-certified urologist. Since 2002, 

Nowzari has been a member of the Medical Staff at Torrance 

Memorial Medical Center (the Hospital) and, until 2018, enjoyed 

unrestricted urological and surgical privileges at the Hospital.

B. The three patient deaths

Three patients under Nowzari’s care at the Hospital died 

within a five-month period between June and November 2017:

● The first patient was an 86-year-old man. Nowzari 

performed a cystoscopy to evaluate a bladder mass on June 15, 

2017. Two days later, the patient suffered from renal failure and 

died. 
3

● The second patient was a 75-year-old woman. 

Nowzari performed a cystoscopy to remove a kidney stone and to 

install a catheter to treat the patient’s sepsis on July 5, 2017. A 

week later, the patient suffered from respiratory failure and 

septic shock and died. 

● The third patient was an 82-year-old man. Nowzari 

performed a cystoscopy, ureteroscopy, and replaced a stent on 

November 6, 2017. The patient’s blood pressure dropped 

following the procedures. The day after the surgery, he died. 

C. Investigation of the patient deaths

In March 2018, the urology subcommittee of the Medical 

Staff reviewed these three patient deaths and preliminarily 

determined that Nowzari’s treatment of the patients fell below 

the standard of care. Before proceeding further, the 

subcommittee invited Nowzari to a meeting, at which he 

disclaimed all “culpability” for the deaths. The subcommittee 

also referred the matter to an outside, independent reviewer, who 

recommended that the Medical Staff “initiate formal corrective 

action” in light of the “poor quality [of] care” tendered by 

Nowzari.

D. Peer review 

The Medical Staff is responsible, among other things, for 

overseeing the “quality of medical care” at the Hospital. To 

discharge that responsibility, the Medical Staff has a standing 

peer review body called the Medical Executive Committee.

1. Summary suspension

On August 13, 2018, and based on the recommendation of 

the urology subcommittee, the Medical Executive Committee 

summarily suspended Nowzari’s membership in the Medical Staff 

and all of his privileges with the Hospital.
4

2. Restriction of privileges and order for further 

evaluation

On August 22, 2018, the Medical Executive Committee held 

a meeting to further consider its initial remedy. Nowzari 

attended the meeting, but the committee was “concerned” by his 

“self-serving” explanation of the patients’ deaths; more to the 

point, the committee questioned whether Nowzari is the type of 

physician “who does many procedures even on high risk patients

without concern whether the risks outweigh the benefits to 

patients.” The Medical Executive Committee ultimately lifted its 

prior suspension, and instead summarily imposed restrictions on 

Nowzari’s membership and privileges—namely, the committee (1) 

restricted Nowzari’s privileges except for assisting in surgery and 

providing inpatient consultations (which would have to be

overseen by another urologist), and (2) removed him from 

emergency call coverage for urology. To “understand the steps 

that will need to be taken in order for [him] to potentially regain 

[his] full surgical privileges,” the committee also required 

Nowzari to undergo a competency assessment from the Physician 

Assessment and Clinical Education (PACE) Program at UC San 

Diego.

3. Results of evaluation and further 

recommendations

In its February 2019 report assessing Nowzari’s 

competence, PACE rated Nowzari a “3”—on a scale of “1” to “4,”

with “4” being worst—which constituted a “pass with 

recommendations” in light of “[s]ignificant deficiencies” that 

precluded Nowzari from “reaching his[] full potential.” Before 

allowing Nowzari to regain full privileges, PACE recommended 

that he (1) be proctored for all surgeries for at least three months, 
5

and for at least five major surgeries; (2) undergo a 

“comprehensive fitness for duty neuropsychological evaluation,” 

which PACE offered to provide; (3) participate in “a random, 

unannounced toxicology screening”; and (4) complete a recordskeeping course. 

The Medical Executive Committee adopted PACE’s 

recommendations with two pertinent modifications—namely, (1) 

rather than having Nowzari’s surgeries proctored for a fixed 

number of months, the committee ordered Nowzari to be 

proctored for a fixed number of surgeries; and (2) rather than 

Nowzari completing any neuropsychological evaluation, the 

committee ordered Nowzari to be evaluated by PACE. What is 

more, the committee specified that Nowzari had to first complete 

the neuropsychological evaluation before he could begin the 

proctored surgeries. 

4. Revised evaluation

After Nowzari contacted PACE to contest his score and its 

recommendation of a neuropsychological evaluation, PACE 

issued an updated assessment that rated him a “2” on its fourpoint scale, but this change did not alter its recommendations. 

PACE expressly found that Nowzari’s challenge to its 

recommendation that he undergo a neuropsychological evaluation 

“did not have merit.” 

E. Nowzari’s noncompliance

In December 2019, Nowzari informed the Medical 

Executive Committee that he had completed the records-keeping 

course. He also inaccurately claimed that his resumption of 

proctored surgeries was “not conditioned on a neuro-psychological 

evaluation” in light of PACE’s updated assessment, but

nevertheless submitted the results of a fitness-for-duty 
6

evaluation conducted by a neuropsychologist he had selected

(rather than by PACE); that psychologist opined that Nowzari 

was “neuropsychologically fit for duty as a practicing urologist.”

The Medical Executive Committee retained an independent 

reviewer to examine the evaluation Nowzari proffered, and the 

reviewer expressed “a number of concerns.” The committee 

accordingly advised Nowzari that he had not satisfied the 

neuropsychological evaluation requirement and that he would 

thus not be permitted to conduct proctored surgeries or move 

toward regaining his full privileges.1

F. Nowzari’s challenge to the peer review decision

1. Hearing before an arbitrator

Nowzari exercised his right to a hearing to contest the peer 

review body’s—that is, the Medical Executive Committee’s—

initial and subsequent recommendations before they became 

final. Nowzari had this right under the Business and Professions 

Code as well as under the Hospital’s Bylaws (the Bylaws). (Bus. 

& Prof. Code, §§ 805, subd. (a)(1)(B)(i), 809, subd. (b), 809.1.)2 

Although the Bylaws only guaranteed him a hearing before a 

1 In his brief and at oral argument, Nowzari asserts that 

counsel for the Medical Executive Committee later “conceded”

that it was ethically “improper” to require Nowzari to have his 

neuropsychological evaluation conducted by PACE. This is a 

complete misrepresentation of the record. What the record 

actually contains is the independent reviewer’s testimony that 

the Medical Executive Committee’s counsel shared with her his

view that it would be “unethical” for the independent reviewer to 

offer an opinion on Nowzari’s neuropsychology based on the 

report prepared by Nowzari’s neuropsychologist.

 

2 All further statutory references are to the Business and 

Professions Code unless otherwise indicated.
7

three-member panel drawn from the Medical Staff (which the 

Bylaws labeled a “Judicial Review Committee”) and overseen by a 

hearing officer, section 809.2, subdivision (a), guarantees the 

option of a hearing before a panel of physicians or an arbitrator, 

and Nowzari exercised his statutory right to have his hearing 

before an arbitrator. After many back-and-forth proposals, 

Nowzari and the Medical Executive Committee mutually agreed 

on a specific arbitrator, despite Nowzari’s awareness that the 

selected arbitrator’s prior experience had been “principally on the 

side of representing medical staff.” 

The evidentiary hearing before the arbitrator spanned 12 

evening sessions in November and December 2020. Consistent 

with statutory law, the Medical Executive Committee bore the 

burden of establishing that its recommendations were 

“reasonable and warranted.” (§ 809.3, subds. (b)(1), (b)(3).) 

Toward that end, the parties called “numerous witnesses” and 

admitted “thousands of pages of exhibits” into evidence.

On March 3, 2021, the arbitrator issued a 28-page decision. 

Procedurally, the arbitrator rejected Nowzari’s contentions that 

the arbitrator had engaged in impermissible ex parte 

communications and that the attorney for the Medical Executive 

Committee (opposing counsel) had “a vendetta against him”; the 

arbitrator found these contentions “baseless,” “unsupported” and 

“false.” On the merits, the arbitrator upheld the Medical 

Executive Committee’s initial and revised recommendations, 

finding (1) the “initial suspension . . . reasonable and warranted” 

“[i]n light of the justified patient safety concerns . . . at the time” 

and in light of the independent review of the three patient deaths

expressing the same concerns; and (2) “the lesser restrictive 

summary restrictions . . . reasonable and warranted, including
8

the requirement that Dr. Nowzari undergo a neuropsychological 

evaluation,” which was independently recommended by PACE, 

thereby confirming the “sensib[ility]” of that requirement. The 

arbitrator noted Nowzari had failed to sufficiently rebut the 

Medical Executive Committee’s evidence.

2. Appeal of hearing

Nowzari next exercised his right under the Bylaws and 

under the Business and Professions Code (§ 809, subd. (b)) to 

appeal the arbitrator’s decision to the appeal board of the 

Hospital’s board of trustees (the Appeal Board). There, Nowzari 

argued that (1) the arbitrator failed to disclose his “long, close,

one-hand-washing-the-other relationship going back years” with 

opposing counsel; (2) the arbitrator was “secretly conspiring [with 

opposing counsel] against” Nowzari, based on Nowzari’s counsel’s

declaration accusing the arbitrator and opposing counsel of 

speaking with one another secretly on a “separate Zoom 

conference” on video during the hearing; and (3) the arbitrator’s 

findings were “not supported by substantial evidence.”

Following further briefing and a hearing, the Appeal Board

on June 16, 2021, issued a 25-page ruling affirming the 

arbitrator’s decision. The Appeal Board rejected Nowzari’s claim

that the arbitrator erred in not making disclosures required by 

California’s arbitration statutes, concluding those statutes were 

inapplicable. The Appeal Board rejected Nowzari’s claim that the 

peer review hearing was unfair due to ex parte communications 

and other bias because “no cognizable evidence in the record” 

supported his “sweeping contention” and “hyperbolic assertions” 

“that virtually everyone involved in the peer review process, from 

beginning to end, was biased and conspired against him.” And 

the Appeal Board ruled that “substantial evidence supports the 
9

[a]rbitrator’s decision that, based on the information available . . . 

at the time,” both the summary suspension and the subsequent, 

summary restrictions on Nowzari’s privileges were “reasonable 

and warranted.” 

II. Procedural Background

A. Petition for writ of administrative mandamus

On July 16, 2021, Nowzari petitioned the trial court for a 

writ of administrative mandamus against the Hospital and the 

Medical Staff to set aside all the decisions affecting his physician 

privileges, relying chiefly on the same three grounds he asserted 

before the Appeal Board.

3

Following a full round of briefing and a hearing, the trial 

court issued a 28-page decision denying Nowzari’s petition. The 

court rejected Nowzari’s claim of arbitrator bias, reasoning that 

(1) California’s disclosure statutes governing contractual 

arbitration did not apply to Nowzari’s peer review hearing; and

(2) Nowzari failed to meet the default, due process-based

standard for disqualification. The court next found Nowzari’s 

claim of ex parte communications between the arbitrator and 

opposing counsel to be a “scurrilous and unsupported accusation”

“based on conjecture and speculation without supporting 

evidence”; the court went so far as to chastise Nowzari and his 

attorney that the accusation of “serious misconduct” “without a 

3 Nowzari erroneously named the Medical Executive 

Committee of the Medical Staff instead of simply the Medical 

Staff. He also erroneously named the board of trustees of the 

Hospital instead of simply the Hospital. The judgment reflects 

the correct party names. 

Nowzari also named as defendants the Hospital’s 

fundraising foundation and an affordable care company, but later 

dismissed them. 
10

good faith basis” had “no business in a brief” and undermined the 

“integrity of our adversary legal process.” Finally, the court 

found that the peer review decision was supported by substantial 

evidence, and that Nowzari’s two-sentence challenge to that 

evidence in his brief failed to prove otherwise. 

Following entry of judgment for the Hospital and the 

Medical Staff, Nowzari timely appealed. 

B. Postjudgment award of attorney fees

While Nowzari’s appeal was pending, the Hospital and the 

Medical Staff moved for statutory attorney fees as a sanction 

against Nowzari for pursuing claims in his writ petition that 

lacked legal or factual foundation or were unreasonable.4 On 

October 4, 2022, the trial court awarded the Hospital and the 

Medical Staff two-thirds of their requested fees—or, $47,513.67.

Nowzari timely appealed that postjudgment order, and this 

court consolidated the two appeals. 

DISCUSSION

In this consolidated appeal, Nowzari attacks both the 

Appeal Board’s final peer review decision and the trial court’s 

award of attorney fees.

I. Peer Review Decision

Nowzari argues that the peer review determination must 

be set aside because (1) the arbitrator was required to disclose 

certain conflicts of interest, (2) the arbitrator engaged in 

impermissible ex parte communications, and (3) the arbitrator’s 

decision is not supported by substantial evidence. Because 

Nowzari’s petition for a writ of administrative mandamus is 

4 They also filed a memorandum of costs, but there is no 

indication in the record that Nowzari challenged any award of 

costs.
11

necessarily directed at final administrative action (§ 809.8; Code 

Civ. Proc., § 1094.5; Smith v. Selma Community Hospital (2008) 

164 Cal.App.4th 1478, 1499 (Smith I)), we must construe 

Nowzari’s attacks as assailing the ruling of the Appeal Board 

(rather than of the arbitrator). We stand in the shoes of the trial 

court and review any factual findings by the Appeal Board for 

substantial evidence, and review any legal questions, including 

those regarding the fairness of the proceedings and statutory 

interpretation, de novo. (Code Civ. Proc., § 1094.5, subd. (d); 

Bode v. Los Angeles Metropolitan Medical Center (2009) 174 

Cal.App.4th 1224, 1236; Ellison v. Sequoia Health Services (2010) 

183 Cal.App.4th 1486, 1495-1496; Sitrick Group, LLC v. Vivera 

Pharmaceuticals, Inc. (2023) 89 Cal.App.5th 1059, 1065 (Sitrick).)

A. Arbitrator’s failure to disclose publicly 

available information prior to the peer review hearing

Nowzari argues that the arbitrator erred in failing to 

disclose two prior peer review proceedings in which the arbitrator 

and opposing counsel had been involved—namely, (1) a 2002

proceeding in which the arbitrator served as counsel for a medical 

staff and opposing counsel served as a hearing officer, and (2) a

2014 proceeding in which the arbitrator served as a hearing 

officer and opposing counsel served as counsel for a medical 

staff.5 Both proceedings were publicly discoverable. Nowzari

argues that this nondisclosure (1) entitles him to an order 

5 At oral argument, Nowzari claimed that the arbitrator and 

opposing counsel have been involved together in 15 to 20 cases. 

This, too, is a complete misrepresentation of the record, which 

contains opposing counsel’s statement that he “bumped into” and 

had “been in cases together 15 or 20 times” with the Appeal

Board’s legal advisor—not the arbitrator.
12

vacating the Appeal Board’s ruling pursuant to the California 

Arbitration Act (the CAA) (Code Civ. Proc., § 1280 et seq.), and 

(2) otherwise constitutes evidence of bias against him under 

general due process principles. 

We reject each of Nowzari’s arguments.

First, Nowzari cannot rely upon the CAA provisions that 

mandate vacating an arbitral award on the basis of an 

arbitrator’s failure to make disclosures mandated by the CAA. 

(See Code Civ. Proc., §§ 1281.9, subds. (a)(3), (a)(4), (a)(6), (d) 

[disclosure requirements], 1281.91, subd. (a) [mandatory 

disqualification of arbitrator for failure to disclose], 1286.2, subd. 

(a)(6)(A) [mandatory vacation of arbitration award for failure to 

disclose]; see also Haworth v. Superior Court (2010) 50 Cal.4th 

372, 381 (Haworth); Sitrick, supra, 89 Cal.App.5th at p. 1065.) 

That is because the CAA, by its terms, only applies to 

“contractual arbitration.” (Code Civ. Proc., § 1281; Mercury Ins. 

Group v. Superior Court (1998) 19 Cal.4th 332, 342, italics added; 

Rockefeller Technology Investments (Asia) VII v. Changzhou 

SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 146.) The 

use of an arbitrator in this case was not the result of any contract 

between Nowzari and anyone else; indeed, because the Bylaws 

only provided for a hearing before the judicial review committee

for the types of charges against Nowzari,

6 the use of an arbitrator 

in this case was solely a function of Nowzari’s entitlement to do so 

6 For less severe restrictions against a physician not 

applicable here, the Bylaws require arbitration and the Medical 

Executive Committee unilaterally designates the arbitrator.
13

under section 809.2.7 Although the CAA applies when a statute 

mandates that the parties agree to contractual arbitration (see 

Mercury, at pp. 341-342, 347; Pilimai v. Farmers Ins. Exchange 

Co. (2006) 39 Cal.4th 133, 141, 144), the CAA does not apply 

where, as here, the statute does not require contractual 

arbitration. This is why our Supreme Court in Natarajan v. 

Dignity Health (2021) 11 Cal.5th 1095 (Natarajan) recently held 

that the CAA’s disclosure requirements do not apply to hearing 

officers used in lieu of arbitrators under the very same peer 

review statutes at issue in this case. (Id. at pp. 1104-1106.) 

Second, Nowzari has failed to meet the residual due process

standard for disqualification. Due process guarantees an 

“impartial decision maker,” which is violated where there is 

“‘actual bias’” or where there is a “‘situation [in] which human 

experience teaches that the probability of actual bias is too high 

to be constitutionally tolerable.’” (Natarajan, supra, 11 Cal.5th 

at pp. 1106-1107.) The “mere suggestion” of actual bias “is not 

sufficient” for disqualification. (Hongsathavij v. Queen of 

Angels/Hollywood Presbyterian Medical Center (1998) 62 

Cal.App.4th 1123, 1142.) Nowzari’s showing falls short of this 

standard. All he has established is that the arbitrator and 

opposing counsel had two prior professional interactions roughly 

17 years and five years prior to the current proceeding; given that 

“‘arbitrators are selected for their familiarity with the type of . . . 

dispute involved’” and thus are not “‘expected to be entirely 

7 Nowzari is accordingly incorrect when, as he did at oral 

argument, he characterized the parties’ selection of an arbitrator 

as constituting contractual arbitration because the parties “opted 

out” of the Bylaws. Arbitration outside of a contract’s terms is 

not arbitration pursuant to that contract.
14

without business contacts in [a] particular field’” (Guseinov v. 

Burns (2006) 145 Cal.App.4th 944, 959, overruled on other 

grounds in Haworth, supra, 50 Cal.4th at p. 382, fn. 6; Merit Ins. 

Co. v. Leatherby Ins. Co. (7th Cir. 1983) 714 F.2d 673, 679 

[acknowledging “tradeoff between impartiality and expertise”]), 

this showing is neither proof of actual bias nor a situation in 

which the probability of actual bias is exceedingly high. Nowzari 

seeks to buttress his inadequate showing by boldly asserting in 

his appellate briefs that these two interactions are “only the tip of 

the iceberg,” that the arbitrator and opposing counsel have a 

“long hand-in-glove working relationship,” have a “long, ongoing 

and incestuous history,” and are “‘budd[ies] in crime’”—and that 

the arbitrator otherwise engaged in “shenanigans” evincing a 

“predispos[ition] to rule for” the Medical Executive Committee—

but these assertions are nothing more than hyperbolic 

speculation lacking any evidentiary foundation whatsoever.

Nowzari resists our conclusion with two further arguments.

First, he argues that Natarajan is not identical to this case 

because it held that the CAA did not apply to a hearing officer

under the peer review statutes; thus, Nowzari continues, it did 

not speak to whether the CAA applies to an arbitrator under 

those statutes. This is true, but irrelevant. In either instance, 

the applicability of the CAA turns on the same question: Is the 

arbitration pursuant to a contract? Where, as in Natarajan and 

as in this case, the answer is no, the CAA does not apply. 

Second, Nowzari argues that he “would never have agreed” 

to the arbitrator had the arbitrator disclosed his prior two 

interactions with opposing counsel. Not only is this argument 

irrelevant to the applicability of the CAA or the constitutional 

test for bias, it is also belied by Nowzari’s contemporaneous 
15

consent to the use of the arbitrator despite being aware of the 

arbitrator’s prior work “principally on the side of representing 

medical staff.”

B. Alleged ex parte communications

Nowzari argues that the Appeal Board erred in rejecting 

his claim that the arbitrator had impermissible ex parte 

communications with opposing counsel. The sole evidence 

Nowzari offered of these impermissible communications was the 

declaration of his counsel, in which counsel stated that the 

arbitrator and opposing counsel had a “separate Zoom 

conference” during the hearing. Counsel’s statement was based 

on counsel’s observation of the arbitrator looking at something 

off-screen and moving his lips at the same time opposing counsel 

was doing the same, along with his perception that the two 

seemed to be moving their lips in an alternating fashion rather 

than at the same time. Given that there are roughly eight billion 

people on earth, counsel’s supposition that the arbitrator and 

opposing counsel were talking to each other in the middle of the

hearing—when such communications would be a staggering 

ethical breach for each of them—is little more than 

“‘“imagination, speculation, supposition, surmise, conjecture, or 

guesswork”’”; whatever label we give it, it is not evidence because 

the inference that jumps from their mouths moving to them 

engaging in impermissible ex parte communications is not a 

reasonable one. (People v. Davis (2013) 57 Cal.4th 353, 360; 

People v. Hughes (2002) 27 Cal.4th 287, 365 [“‘[a]n inference is 

not reasonable if it is based only on speculation’”].) And even if it 

were, it was flatly contradicted by the statements of the

arbitrator and opposing counsel, both of whom vehemently 

denied talking to one another. The Appeal Board credited their 
16

testimony over Nowzari’s counsel’s, and we are not at liberty to 

reweigh that credibility finding. (In re Caden C. (2021) 11 

Cal.5th 614, 640 (Caden C.).) Nowzari’s final argument is that 

the only reason the Appeal Board and the trial court rejected his 

counsel’s declaration is because they, too, are part of a massive, 

clandestine conspiracy against him; this, too, is nothing but 

speculation.8

C. Substantial evidence

Nowzari finally urges that substantial evidence does not 

support the arbitrator’s findings that the Medical Executive 

Committee’s restrictions on his privileges were reasonable and 

warranted. We reject this argument for two reasons. First, 

Nowzari aims his challenge at the wrong entity; our task, as 

noted above, is to review the ruling of the Appeal Board, not the 

arbitrator. Second, and more to the point, his challenge lacks 

merit. The Appeal Board upheld the Medical Executive 

Committee’s summary suspension and restriction decisions after 

necessarily concluding that the opinions of the urology 

subcommittee, the Medical Executive Committee, an independent 

reviewer, and PACE—all of whom expressed concerns with 

Nowzari’s medical judgment—had greater credibility and thus 

were entitled to greater weight than the opinion of Nowzari’s 

expert, who opined that Nowzari was an exemplary physician 

who did nothing wrong. Indeed, Nowzari acknowledges in his 

appellate briefs that the decision restricting his privileges “may 

have basis in some of the evidence.” This is fatal to his claim. 

Rather than demonstrate that every single one of the multiple 

8 Nowzari also likens the trial court to a Holocaust denier. 

This type of gross and baseless hyperbole is unfounded, 

disrespectful, offensive, and unethical. 
17

opinions supporting the Appeal Board’s decision is factually or 

methodologically invalid (and hence entitled to no weight), 

Nowzari merely urges us to credit his expert over the competing 

experts. At bottom, he is asking us to reweigh the Appeal Board’s 

credibility call and hence reweigh the evidence. This is beyond 

our purview when reviewing the ruling for substantial evidence. 

(Caden C., supra, 11 Cal.5th at p. 640 [we do not “‘reweigh the 

evidence, evaluate the credibility of witnesses, or resolve 

evidentiary conflicts’”].) 

II. Attorney Fees Award

Nowzari argues that the trial court erred in awarding the

Hospital and the Medical Staff $47,513.67 in attorney fees.

The Business and Professions Code statutes governing 

medical peer review empower a trial court, when litigating a writ 

petition challenging a peer review decision, to award costs, 

including “reasonable” attorney fees, to the party who 

“substantially prevail[s]” on any claim that is “frivolous, 

unreasonable, without foundation, or in bad faith.” (§ 809.9.) 

This is a sanctions provision. (Mir v. Charter Suburban Hospital 

(1994) 27 Cal.App.4th 1471, 1485.) As pertinent here, a claim is 

“without foundation” where it is factually or legally “baseless, 

groundless, or without support” (Smith v. Selma Community 

Hospital (2010) 188 Cal.App.4th 1, 30-31 (Smith II)), and a claim

is “unreasonable” where no reasonable attorney would find it 

tenable9 (Smith II, at p. 32). Whether a physician brought or 

litigated a claim that was without foundation or was

9 There is some debate over whether the more forgiving

negligence standard applies. (Smith II, supra, 188 Cal.App.4th

at p. 32.) However, we will sidestep that debate by applying the 

more stringent standard. 
18

unreasonable is determined objectively, and therefore constitutes 

a question of law we review independently on appeal. (Id. at pp.

28, 31.) 

We independently conclude that the trial court properly 

determined that two of Nowzari’s claims in his petition—namely, 

his claims that (1) the arbitrator engaged in impermissible ex 

parte communications, and (2) substantial evidence did not 

support the arbitrator’s findings—were “without foundation” or 

“unreasonable.” The Appeal Board had already explicitly found 

that Nowzari’s claim regarding ex parte communications lacked 

any evidentiary basis; “without direct or circumstantial evidence 

to support it,” the claim was “without foundation” (Smith II,

supra, 188 Cal.App.4th at p. 31). Nowzari’s substantial evidence 

challenge was also “unreasonable” because, as noted above, it 

assailed the wrong administrative body’s determination and did 

no more than implore the trial court to impermissibly reweigh 

the evidence in his favor. Because the trial court concluded that 

two of Nowzari’s three challenges satisfied the standard for the 

award of sanctions, the court permissibly awarded the Hospital 

and the Medical Staff two-thirds of the fees it requested—

namely, $47,513.67 instead of $71,270.50.

Nowzari responds with four arguments.

First, he argues that the Hospital and the Medical Staff 

waived their right to request attorney fees because they did not 

pray for them in their answer to his writ petition. Nowzari has 

the law wrong. Except in cases of default (which is not 

implicated here), attorney fees need not be pleaded. (Carlsbad 

Police Officers Assn. v. City of Carlsbad (2020) 49 Cal.App.5th 

135, 142, fn. 3; see also Washburn v. City of Berkeley (1987) 195 
19

Cal.App.3d 578, 583-584 [failure to request fees in writ of 

mandate petition did not constitute waiver of right to such fees].) 

Second, he argues that the trial court was divested of 

jurisdiction to award attorney fees once Nowzari filed his notice 

of appeal from the judgment denying his writ petition. This 

argument is frivolous. The filing of a notice of appeal does not 

divest a trial court of jurisdiction over “collateral matter[s],” and 

attorney fees are the quintessential “collateral matter.” (Code 

Civ. Proc., § 916; Serrano v. Unruh (1982) 32 Cal.3d 621, 636-637; 

Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368-369, superseded 

by statute on other grounds as stated in Lee v. Wells Fargo Bank

(2001) 88 Cal.App.4th 1187, 1197; Robertson v. Rodriguez (1995) 

36 Cal.App.4th 347, 360.) 

Third, he argues that the trial court never found his claims 

to be frivolous or in bad faith. Such findings are not required. 

The statute lists the four bases for fees in the alternative. (§ 

809.9; Smith II, supra, 188 Cal.App.4th at pp. 29-30.)

Fourth and lastly, Nowzari argued—for the first time at 

oral argument—that a trial court’s award of sanctions under 

section 809.9 must be an all-or-nothing decision, and that the 

trial court erred in awarding a reduced amount of the requested 

sanctions to reflect its finding that only two out of Nowzari’s 

three claims “lacked foundation” or were “unreasonable.” This 

argument is meritless, for it ignores the basic principle that trial 

courts possess the discretion, when awarding fees as a sanction, 

to reduce those fees “in order to reach a reasonable award.” (§ 

809.9 [“reasonable attorney’s fee[s]”]; see, e.g., Cornerstone Realty 

Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 

Cal.App.5th 771, 791 [“the principles of reasonableness and 

causation” impose a duty on the trial court to, in its discretion, 
20

“reduce the amount of fees and costs requested” to “fix a 

reasonable amount” “incurred as a result of discovery abuse”].) 

DISPOSITION

The judgment and postjudgment order are affirmed. The 

Hospital and the Medical Staff are entitled to their costs on 

appeal.10

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ

10 The Hospital and the Medical Staff have requested that we 

direct the trial court to further award them attorney fees 

incurred on appeal. We defer to the trial court to determine that 

issue in the first instance.