Filed 3/19/21 Garmestani v. Wasserman CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

MARJAN GARMESTANI,

Plaintiff and Appellant,

v.

MICHAEL E. WASSERMAN et al.,

Defendants and Respondents.

 B304973, B307428

 (Los Angeles County

 Super. Ct. No. 19STCV35142)

 ORDER MODIFYING OPINION

 [NO CHANGE IN JUDGMENT]

THE COURT:

Tashnizi Law Firm and Paul Tashnizi as counsel for 

Faramarz Zargar filed a notice of errata on March 17, 2021. He 

stated that he erroneously listed attorney Janette S. Bodenstein 

as an attorney of record for Zargar and requested that we correct 

our opinion, filed on March 12, 2021. Janette S. Bodenstein then 

filed a declaration stating under penalty of perjury that she never 

represented Zargar in the underlying lawsuit or appeal. 

It is therefore ordered that the opinion filed on March 12, 

2021 is modified to delete Janette S. Bodenstein as counsel for 

Zargar. 
2

This modification does not change the judgment.

NOT TO BE PUBLISHED.

____________________________________________________________

SALTER, J.* LAVIN, Acting P. J. EGERTON, J.

* Judge of the Orange County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.
Filed 3/12/21 Garmestani v. Wasserman CA2/3 (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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

MARJAN GARMESTANI,

Plaintiff and Appellant,

v.

MICHAEL E. WASSERMAN et al.,

Defendants and Respondents.

 B304973, B307428

 (Los Angeles County

 Super. Ct.

 No. 19STCV35142)

APPEALS from orders of the Superior Court of Los Angeles 

County, Anthony J. Mohr, Judge. Affirmed.

Bartsch Law Group and Duane L. Bartsch for Plaintiff and 

Appellant.

Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and 

Janette S. Bodenstein for Defendant and Respondent Michael E. 

Wasserman.

Tashnizi Law Firm, Paul Tashnizi and Janette S. 

Bodenstein for Defendant and Respondent Faramarz Zargar.

——————————
2

This is an anti-SLAPP action. In an underlying action, 

Faramarz Zargar sued Marjan Garmestani for dental

malpractice. After Garmestani prevailed in that lawsuit, she

sued Zargar and the attorney who had represented him,

Michael E. Wasserman, for malicious prosecution. Zargar and 

Wasserman moved to specially strike the complaint under Code 

of Civil Procedure1 section 425.16. The trial court granted their

motions. Garmestani now appeals the orders granting those 

motions and awarding Zargar and Wasserman attorney fees.

2 

We affirm the orders.

BACKGROUND

I. The underlying action

Garmestani, a dentist, treated Zargar by replacing his 

lower teeth with implants. She last saw him in May 2016. 

Zargar thereafter sued Garmestani for negligence arising out of 

that treatment. A jury found that Garmestani was negligent, but 

her negligence was not a substantial factor in causing harm to 

Zargar. Judgment was therefore entered in Garmestani’s favor.

II. The malicious prosecution action 

Garmestani then sued Zargar and Wasserman for 

malicious prosecution, negligence, and intentional and negligent 

1 All further statutory references are to the Code of Civil 

Procedure.

2 Zargar has filed a joinder in Wasserman’s briefs on 

appeal.
3

infliction of emotional distress.3 Garmestani alleged that in the 

underlying action Zargar concealed that other dentists treated 

him after she did and that Wasserman, despite learning of his 

client’s deceit, continued to prosecute the underlying action 

though lacking an honest and reasonable belief in it. As proof 

that another dentist treated Zargar and caused any injuries, 

Garmestani primarily relied on the last X-ray she took of him on 

May 20, 2016 to show that she put one type of material in 

Zargar’s access holes. But subsequent X-rays showed a different

material in the access holes. From this, Garmestani surmised 

that another dentist treated Zargar after he left her care. Yet, in 

discovery responses Zargar never identified a dentist who treated 

him after he left Garmestani’s care. 

In response to the complaint, Zargar and Wasserman filed 

separate motions to strike the operative pleading, the second 

amended complaint. 

A. Wasserman’s motion and evidence

Wasserman argued that Garmestani could not show a 

probability of prevailing on her malicious prosecution cause of 

action, and the litigation privilege barred the remaining causes of 

action. To support his motion, Wasserman submitted his 

declaration and discovery from the underlying action.

1. Wasserman’s declaration

Wasserman denied harboring malice, ill will or spite 

towards Garmestani in filing and maintaining the underlying 

action. Rather, before filing the complaint, he conducted a 

3 Zargar also sued but dismissed the Law Office of 

Michael E. Wasserman.
4

detailed investigation that included reviewing Zargar’s medical 

records and consulting implant expert Dr. Nader Salib, who 

examined Zargar and advised that Garmestani had improperly 

placed the implants. After the case was filed, Wasserman had 

Zargar examined by Dr. Daniel Kantarovich, who opined that the 

dental work Garmestani performed was negligent. Throughout 

the litigation, Zargar maintained that only Garmestani treated 

him for his implants, although he did consult others. Wasserman 

had no reason to doubt Zargar’s claim that the dentures and 

implants Zargar wore at trial were the ones Garmestani made. 

Wasserman also denied that Garmestani’s attorney in the 

underlying action told him that Zargar was concealing the 

identity of a treating dentist and that he should dismiss the case. 

2. Discovery in the underlying action

Wasserman countered Garmestani’s claim that Zargar

concealed he saw other dentists by pointing to discovery in which

Zargar identified dentists he consulted because he was 

experiencing discomfort and was unable to eat after getting his 

implants: Dr. Sohrab Yazdani, Dr. Ron Nourian at Whittier 

Dental Center, and Dr. Taher Aminikharrazi. Dr. Aminikharrazi 

advised Zargar in July 2016 that his implants were poorly placed 

and infected and recommended removing and replacing them. 

Zargar’s expert Dr. Salib similarly testified at his 

deposition that Zargar’s implants should be removed because food 

and bacteria got in through a gap in the prosthesis. Dr. Salib 

identified other problems with the implants, including that they 

were poorly placed in insufficient bone. According to him, 

Garmestani “violated all basic implantology rules and did not

respect basic biology of keeping sufficient distance” for hard and 

soft tissue considerations. 
5

Garmestani’s own experts agreed that there were problems 

with Zargar’s implants. One said that Garmestani’s last X-ray 

showed a gap in the seating of the prosthesis. Her other expert

testified at his deposition that the framework did not fit on a 

lower interior implant and that Garmestani did not correct the 

problem. 

To further counter the assertion that someone treated 

Zargar after he stopped seeing Garmestani, Zargar’s 

prosthodontic expert Dr. Kantarovich investigated whether 

Zargar’s prosthesis had been removed after Zargar left 

Garmestani’s care. His investigation was inconclusive. Still, he

found speculative the claim that Zargar’s prosthesis had been

removed and replaced. Instead, he believed that the last X-ray 

Garmestani claimed she took on May 20, 2016 was actually taken 

a month earlier, in April 2016. This explained why X-rays taken 

after Zargar left Garmestani’s care showed a material in the 

access holes that was different than shown in Garmestani’s last 

X-ray. Stated otherwise, after Garmestani took the X-ray in 

April 2016, she put a different material in his access holes and 

that is what was seen on subsequent X-rays.

B. Zargar’s motion and evidence

Zargar also argued that Garmestani could not establish the 

elements of a malicious prosecution action. Rather, Zargar had 

brought and continued the underlying action with probable 

cause, as the jury’s finding that Garmestani was negligent

underscored. Further, Zargar suffered pain, inflammation, and 

infection after Garmestani’s treatment, showing that she injured 

him. Similar to Wasserman’s motion, Zargar denied that he 

concealed the identity of other dentists he saw after Garmestani
6

and pointed to his discovery responses identifying various 

dentists he had consulted. 

C. Garmestani’s oppositions

To show that Zargar and Wasserman lacked probable cause 

to bring and to maintain the underlying action, Garmestani

submitted select portions of Zargar’s written discovery responses 

from the underlying action in which Zargar identified 

Dr. Aminikharrazi as the only dentist he saw after leaving 

Garmestani’s care. Similarly, at his deposition, Zargar said that 

Dr. Aminikharrazi was the only dentist he saw after 

discontinuing care with Garmestani and denied seeing a dentist 

before discontinuing treatment. 

Finally, Garmestani submitted portions of Dr. Salib’s 

deposition testimony in which he answered questions about 

whether someone treated Zargar after Zargar left Garmestani’s 

care. According to Garmestani’s interpretation of that testimony, 

Dr. Salib agreed that another dentist removed Zargar’s

prosthesis after Zargar left her care. 

III. The trial court’s ruling

The trial court granted Wasserman’s and Zargar’s motions. 

It found “abundant” probable cause to bring the case based on

experts who opined that Garmestani was negligent. The trial 

court also noted that the existence of another dentist would not 

negate probable cause. Finally, there was no evidence of malice 

“whatsoever.” Accordingly, the trial court entered judgment in 

favor of Wasserman and Zargar and dismissed Garmestani’s 

operative pleading with prejudice. The trial court thereafter 

granted Wasserman and Zargar attorney fees under section

425.16, subdivision (c)(1). 
7

DISCUSSION

I. The anti-SLAPP statute and standard of review

Section 425.16, the anti-SLAPP statute, provides a 

procedure for the early dismissal of SLAPP suits (strategic 

lawsuits against public participation), which is litigation of a 

harassing nature brought to challenge the exercise of protected 

free speech rights. (Fahlen v. Sutter Central Valley Hospitals

(2014) 58 Cal.4th 655, 665 & fn. 3.) The anti-SLAPP statute is 

designed to weed out, at an early stage, meritless claims arising 

from protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 

384.) 

Evaluating an anti-SLAPP motion requires the trial court 

first to determine whether the moving defendant has made a 

threshold showing that the challenged action arises from 

protected activity, that is, activity in furtherance of the rights of 

petition or free speech. (§ 425.16, subd. (e); Rusheen v. Cohen

(2006) 37 Cal.4th 1048, 1056.) If so, the burden shifts to the 

plaintiff to demonstrate a probability of prevailing. (Oasis West 

Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.) This 

second step is a summary-judgment-like procedure at which the 

trial court does not weigh evidence or resolve conflicting factual 

claims. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) The trial 

court’s inquiry is limited to whether the plaintiff has stated a 

legally sufficient claim and made a prima facie factual showing 

sufficient to sustain a favorable judgment, accepting as true the 

plaintiff’s evidence and evaluating the defendant’s showing only 

to determine if it defeats the plaintiff’s claim as a matter of law. 

(Id. at pp. 384–385.)

We review de novo an order granting a special motion to 

strike. (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at 
8

p. 820.) We consider the “pleadings and supporting and opposing 

affidavits stating the facts upon which the liability or defense is 

based,” examine the complaint in a fair and commonsense 

manner, and broadly construe the anti-SLAPP statute. (§ 425.16, 

subds. (a), (b)(2).) However, we do not weigh credibility or

compare the weight of the evidence. (Soukup v. Law Offices of 

Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) 

II. Malicious prosecution and probability of prevailing4

There is no dispute that the action arises from protected 

activity. We therefore proceed to the second prong of the antiSLAPP statute, whether Garmestani established a probability of 

prevailing on her malicious prosecution cause of action. To 

establish that cause of action, she had to plead and prove that the 

underlying action (1) was commenced by or at the defendants’

direction and was pursued to a legal termination in plaintiff’s 

favor; (2) was brought without probable cause; and (3) was 

initiated with malice. (Crowley v. Katleman (1994) 8 Cal.4th 666, 

676.) A cause of action for malicious prosecution will lie if an 

action is commenced or continued without probable cause. 

(Zamos v. Stroud (2004) 32 Cal.4th 958, 965–966.) Here, 

Garmestani obtained a judgment on the merits in her favor in the 

underlying action, thereby satisfying the first element of the 

cause of action. (See generally Casa Herrera, Inc. v. Beydoun 

4 Garmestani has not addressed her causes of action for 

negligence and for intentional and negligent infliction of 

emotional distress. Accordingly, she has forfeited any challenge 

to the ruling on those causes of action, and we do not address 

them. (See, e.g., Wall Street Network, Ltd. v. New York Times Co.

(2008) 164 Cal.App.4th 1171, 1177–1178.)
9

(2004) 32 Cal.4th 336, 341–342.) We therefore focus on the 

second element, probable cause, because it is dispositive of the 

appeal and obviates any need to discuss the third element of 

malice. 

Probable cause asks whether the prior action was 

objectively legally tenable. (Soukup v. Law Offices of Herbert 

Hafif, supra, 39 Cal.4th at p. 292.) “Probable cause is a low 

threshold designed to protect a litigant’s right to assert arguable 

legal claims even if the claims are extremely unlikely to succeed,” 

and therefore the standard of probable cause to bring a civil suit 

is equivalent to that for determining the frivolousness of an 

appeal. (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047.) 

Only actions that any reasonable attorney would agree are totally 

and completely without merit may form the basis for a malicious 

prosecution action. (Id. at p. 1048; Wilson v. Parker, Covert & 

Chidester (2002) 28 Cal.4th 811, 824.) “Plaintiffs and their 

attorneys are not required, on penalty of tort liability, to attempt 

to predict how a trier of fact will weigh the competing evidence, 

or to abandon their claim if they think it likely the evidence will 

ultimately weigh against them. They have the right to bring a 

claim they think unlikely to succeed, so long as it is arguably 

meritorious.” (Wilson, at p. 822.)

As the trial court found here, Wasserman and Zargar had 

abundant probable cause to bring and to maintain the underlying 

action. After Garmestani treated Zargar, he began experiencing

pain and was unable to chew on one side of his mouth. Zargar 

therefore consulted Dr. Aminikharrazi, who told Zargar the 

implants were improperly placed and infected and recommended 

replacing them. Before Wasserman filed a lawsuit on Zargar’s 

behalf, Wasserman had another dentist familiar with implants
10

evaluate Zargar, and that dentist, Dr. Salib, agreed that 

Garmestani had improperly placed the implants. Then, during 

litigation, other experts—including Garmestani’s—agreed that 

the prosthesis did not fit properly. This constituted abundant 

competent evidence to substantiate the negligence claim. (See 

generally Wilson v. Parker, Coverty & Chidester, supra, 28 

Cal.4th at p. 822.) Indeed, it is hard to see that any reasonable 

attorney would consider the claim meritless and frivolous.

Garmestani, however, maintains that the evidence 

conclusively established another dentist treated Zargar and that 

Zargar concealed this dentist’s identity. However, it is by no 

means certain that anyone other than Garmestani treated 

Zargar. Garmestani primarily relies on X-rays taken after she 

stopped treating Zargar. Those X-rays show a cement material in 

the prosthetic’s access holes that was not present in the last Xray she took of Zargar, which she claimed she took in May 2016. 

To Garmestani, this is the smoking gun that proves another 

doctor treated Zargar after she did; hence, there was a 

superseding cause of his injuries. But Dr. Kantarovich offered 

other explanations for this mystery other than that somebody

treated Zargar after Garmestani, the main one being that

Garmestani was lying. According to Dr. Kantarovich, the X-rays

were not taken in May 2016, when Garmestani said they were. 

They were taken earlier, in April 2016. If so, then Garmestani, 

who removed Zargar’s prosthesis multiple times before she 

stopped seeing him, could have put the different material in the 

access holes that appeared on subsequent X-rays.

Garmestani also makes too much of Dr. Salib’s deposition 

testimony about the alleged undisclosed dentist. Dr. Salib did 

not testify that someone treated Zargar after Garmestani. 
11

Dr. Salib merely agreed that Garmestani used one type of 

material to fill access holes and that X-rays taken after Zargar 

left her care showed a different material in them. Then, in 

response to a question presuming the existence of another 

dentist, Dr. Salib said he would have liked to have seen that 

dentist’s records. But Dr. Salib did not testify either that another 

dentist existed or that another dentist treated Zargar after 

Garmestani. He did not know if anyone removed the prosthesis 

after Zargar left Garmestani’s care. Indeed, whether someone 

removed the prosthesis after Zargar stopped seeing Garmestani 

was irrelevant to his opinion about Garmestani’s negligence. 

Thus, neither the X-rays nor Dr. Salib’s testimony conclusively 

established that Zargar received treatment after Garmestani 

such that she was not the cause of his injury. Indeed, 

Garmestani’s own expert had no opinion whether any dentist 

treated Zargar after Garmestani. 

Even if another dentist treated Zargar after he stopped 

seeing Garmestani, that would not necessarily show the absence 

of probable cause for the underlying action. Rather, the defense 

of superseding cause absolves a tortfeasor, even though her 

conduct was a substantial contributing factor, when an 

independent event intervenes in the chain of causation, 

producing harm of a kind and degree so far beyond the risk the 

original tortfeasor should have foreseen that it is unfair to hold 

her responsible. (Soule v. General Motors Corp. (1994) 8 Cal.4th 

548, 573, fn. 9.) Given that multiple dentists and experts found 

that Garmestani’s prosthesis was poorly placed and that Zargar 

experienced pain and infection, a reasonable attorney could 

believe that a jury would find Garmestani liable, even if another 

tortfeasor existed. In fact, the jury found that Garmestani was 
12

negligent, even if her negligence was not a substantial factor in 

causing the injury.

Given that nothing conclusively established that some 

unnamed dentist treated Zargar, he can hardly be found guilty of 

concealing the identity of someone who might not exist. Rather, 

Zargar consistently maintained that only Garmestani treated 

him in connection with the implants. And Wasserman was 

entitled to rely on Zargar’s representations in the absence of 

discovering Zargar provided false information. (See, e.g., Litinsky 

v. Kaplan (2019) 40 Cal.App.5th 970, 981.) Therefore, 

Garmestani’s reliance on Zargar’s supposedly inadequate 

discovery responses does not help her meet her burden. In accord 

with his position that he only treated with Garmestani, Zargar

identified dentists whom he consulted but from whom he received 

no treatment. Further, Garmestani’s claim that Zargar identified

only Dr. Aminikharrazi in discovery is simply wrong. He also 

identified Dr. Yazdani and the Whittier Dental Center. 

As for Garmestani’s contention that the trial court 

improperly weighed the evidence and credited only Zargar’s and 

Wasserman’s evidence, it is meritless. She takes out of context 

comments the trial court made. The trial court said that 

Garmestani was inviting speculation “as to some unknown 

damage. Yes, there is a photograph. But there’s really no solid 

evidence of an unknown dentist. There might be.” Even so, “the 

evidence doesn’t preponderate for lack of probable cause. [¶] Not 

only that, there is no indication of malice, whatsoever, in this 

case. Again, you’ve got expert witnesses. The Plaintiff’s counsel 

consulted with an expert. . . . [T]he Plaintiff’s counsel talked 

with . . . the Plaintiff. I have a right to believe what the Plaintiff 

was saying.” (Italics added.) Considering these comments in the 
13

totality of the trial court’s statement, it was merely 

acknowledging that Zargar and Wasserman’s showing defeated 

Garmestani’s claim. (See, e.g., Baral v. Schnitt, supra, 1 Cal.5th 

at pp. 384–385.) The trial court did not resolve disputed issues of 

fact, such as whether a dentist treated Zargar after Garmestani 

did. In fact, the trial court said that the existence of another 

dentist would not alter its opinion. In short, the trial court

properly decided issues of law based on the facts before it, 

accepting as true Garmestani’s evidence but finding that 

Wasserman’s and Zargar’s showing defeated it as a matter of law. 

(See, e.g., Litinsky v. Kaplan, supra, 40 Cal.App.5th at p. 982.)

But, even if we assumed that the trial court misunderstood its 

role in evaluating the anti-SLAPP motions, it would be of no 

moment because our review is de novo. 

III. Attorney fees

The only argument Garmestani makes regarding the order 

granting Wasserman and Zargar attorney fees is that if we 

reverse the orders striking her complaint, we must also reverse

the order granting attorney fees. As we affirm the orders striking 

Garmestani’s complaint, we also affirm the order awarding 

Wasserman and Zargar their attorney fees.
14

DISPOSITION

The orders are affirmed. Michael E. Wasserman and 

Faramarz Zargar are awarded their costs on appeal.

NOT TO BE PUBLISHED.

SALTER, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Orange County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.