NOT FOR PUBLICATION FILED

APR 6 2020

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAHROKH MIRESKANDARI; PAUL No. 16-55547

BAXENDALE-WALKER, 17-55540

Plaintiffs-Appellants, D.C. No. 2:12-cv-03861-JGB-

MRW

v.

BARRINGTON MAYNE; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted February 4, 2020 San Francisco, California

Before: PAEZ and BEA, Circuit Judges, and JACK,** District Judge.

Shahrokh Mireskandari and Paul Baxendale-Walker appeal the district

court’s judgment dismissing their action with prejudice. They also appeal the

denial of their motion for an indicative ruling, made under Federal Rule of Civil

Procedure 62.1, that the district court would likely grant relief from the judgment

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Janis Graham Jack, United States District Judge for under Federal Rule of Civil Procedure 60(b)(2) or (b)(3). We have jurisdiction

under 28 U.S.C. § 1291. We review the dismissal of the appellants’ complaint de

novo. DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., 852 F.3d 868,

873, n.5 (9th Cir. 2017). We review the district court’s denial of the Rule 62.1

motion, which served as a denial of the Rule 60(b) motion on the merits, for an

abuse of discretion. See Fed. R. Civ. P. 62.1(a)(2); United States v. Asarco, Inc.,

430 F.3d 972, 978 (9th Cir. 2005). We affirm.

The district court properly dismissed appellants’ claims against Barrington

Mayne, Malcolm Lees, David Middleton, Antony Townsend, and Richard Hegarty

because these defendants were entitled to common-law foreign sovereign

immunity. The allegations as to these defendants consistently stated that they

acted to further the objectives of foreign government entities, the Law Society of

England and Wales (“LSE”) and the Solicitors Regulation Authority (“SRA”).

Because the defendants performed the alleged conduct in their official capacities,

they are entitled to common-law foreign sovereign immunity. See Dogan v. Barak,

932 F.3d 888, 893-94 (9th Cir. 2019) (common-law foreign immunity shields

foreign officials from liability for “acts performed in their official capacity if the

effect of exercising jurisdiction would be to enforce a rule of law against the state.”

(alteration, citation, and internal quotation marks omitted)). The record does not

the Southern District of Texas, sitting by designation.

2 16-55547 support the appellants’ contention that these defendants waived common-law

foreign sovereign immunity as a defense by failing to raise it in their motion to

dismiss.

The district court properly dismissed the defamation claim against Mansur

Rahnema as barred by the litigation privilege. See Wang v. Heck, 137 Cal. Rptr.

3d 332, 337 (Ct. App. 2012) (discussing requirements for application of

California’s litigation privilege). Rahnema’s email to Dr. Farzam was covered by

the privilege because Rahnema was a witness in the LSE/SRA disciplinary

proceedings, and the email sought to convince Dr. Farzam to stop assisting

Mireskandari so that the proceedings could go forward. Rhanema’s phone call to

Mireskandari’s attorney, Michael Hayes, was made after this litigation began and

was thus covered by the privilege.

The district court properly dismissed the Racketeer Influenced and Corrupt

Organizations Act (“RICO”) claim against Rahnema because appellants failed to

allege facts sufficient to show a predicate act. See United Bhd. of Carpenters &

Joiners of Am. v. Bldg. & Const. Trades Dep’t, AFL-CIO, 770 F.3d 834, 837 (9th

Cir. 2014) (stating the elements of a civil RICO claim). To the extent appellants

argue that Rahnema engaged in the predicate acts of witness tampering and

extortion, they forfeited this argument by failing to raise it in the district court.

See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

3 16-55547 The district court did not abuse its discretion by denying appellants’ motion

to compel discovery relating to sovereign immunity because appellants failed to

demonstrate actual and substantial prejudice resulting from the denial of the

requested discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)

(setting forth standard of review and explaining that a district court’s “decision to

deny discovery will not be disturbed except upon the clearest showing that denial

of discovery results in actual and substantial prejudice to the complaining litigant.”

(citation and internal quotation marks omitted)) The appellants’ operative

complaint alleges that defendants Mayne, Lees, Middleton, Townsend, and

Hegarty were working within their official capacities to advance the goals of the

LSE/SRA, and additional discovery would not have affected their eligibility for

common-law sovereign immunity.

The district court did not abuse its discretion in denying appellants’ motion

for an indicative ruling regarding relief from the judgment because appellants

failed to establish any basis for such relief. See Sch. Dist. No. 1J v. ACandS, Inc.,

5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds

for relief from judgment under Fed. R. Civ. P. 60(b)). The district court’s finding

that appellants’ “newly discovered” evidence either could have been discovered

previously with reasonable diligence, or was cumulative of evidence already

considered, was not “illogical, implausible, or without support in inferences that

4 16-55547 may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262

(9th Cir. 2009) (en banc). The same is true of the district court’s finding that

appellants lacked clear and convincing evidence that the judgment was obtained by

fraud.

Appellants’ request for “expeditious treatment and/or a limited remand for

discovery based on the ages of parities and witnesses” (Docket Entry No. 98 in

Appeal No. 16-55547; Docket Entry No. 55 in Appeal No. 17-55540) is denied as

moot.

AFFIRMED.

5 16-55547