FACTS

A. Disciplinary Background

Saba is an Army veteran and was admitted to the California Bar in 1988. In 2011,

the Loma Linda Veterans Administration Medical Hospital diagnosed him with

Alzheimer’s type dementia, and he began receiving treatment for his condition in 2015.

He is currently 77 years old.

Between late 2014 and early 2017, the State Bar brought five separate disciplinary

charges against Saba. The charges alleged various ethical violations, such as filing

frivolous cases, and failing to pay and report sanctions totaling over $50,000. Ultimately,

the State Bar stayed those charges pending the resolution of his mental competency

hearing under section 6007.

B. Saba’s State Bar Hearing

The California Supreme Court holds the exclusive power to disbar, suspend, or

place attorneys on inactive status, but the State Bar acts as the court’s administrative arm

in such matters. (In re Rose (2000) 22 Cal.4th 430, 438; Cal. Const., art. VI, § 9.) To

carry out that work, the State Bar established the State Bar Court to conduct regulatory

3 and disciplinary proceedings and provide recommendations to the California Supreme

Court. (See Cal. Rules of Court, rule 9.12; In re Attorney Discipline System (1998) 19

Cal.4th 582, 598.)

Section 6007 sets out the various grounds upon which the State Bar Court may

order the involuntary inactive enrollment of an attorney. As relevant here, those reasons

include a finding that the attorney is unable to competently perform their duties or is

unable to practice without substantial threat of harm to the interests of their clients or the

public “because of mental infirmity or illness.” (§ 6007, subd. (b)(3).)

In January 2017, the State Bar Court judge found probable cause to investigate

Saba’s competency to practice law under section 6007, subdivision (b)(3). After

appointing Virgo to defend Saba, the judge appointed a psychologist, Dr. Craig Lareau,

to conduct an independent medical examination of Saba. Following the examination, Dr.

Lareau submitted a 16-page report in which he concluded Saba was “unable to practice

law without substantial threat of harm to the interests of his clients or the public” due to

“substantial neurocognitive deficits,” including poor memory function and difficulty

learning and assimilating new information. In response, Saba submitted written

comments objecting to Dr. Lareau’s evaluation and conclusions.

Saba’s hearing took place on December 1, 2017. The Office of Chief Trial

Counsel called Dr. Lareau as a witness and submitted into evidence his report, the results

of the tests he administered on Saba, and portions of Saba’s medical record. Although

4 Virgo represented Saba at the hearing, the judge allowed Saba to act as co-counsel, and in

that capacity he cross-examined Dr. Lareau.

In a written statement of decision, the judge found Dr. Lareau’s opinion was

supported by clear and convincing evidence. The judge observed that Dr. Lareau had

evaluated Saba over six and a half-hours and had conducted extensive functional testing.

He also noted that Saba’s medical records revealed that he had been complaining to his

medical providers of forgetfulness since 2011.

The judge highlighted the following passage in Dr. Lareau’s report: “On a

humanistic note, it is important to remember that the neurocognitive difficulties Mr. Saba

is experiencing are beyond his control to change. It must be frustrating for him to have

his professional identity as a lawyer challenged by the current process. He knows he has

had memory difficulties for several years, and he states he has been trying to complete his

current cases for an extended time. He realizes that his cognitive difficulties would likely

get worse over time. Unfortunately, he has difficulty recognizing how significant his

cognitive deficits have become, in part because he does not want it to be true. To accept

that this is now his reality will thrust him unwillingly into another stage of life, where he

can no longer be the same provider he has been over the last 30 years. It may be a

difficult transition for him to make from a psychological perspective.”

The judge concluded his decision by observing that Saba struck him as “a very

intelligent man . . . [who] has been a good and aggressive advocate for his clients for the

bulk of his many years of practice.” However, because of his medical condition and

5 “through no fault of his own, [Saba’s] abilities and reliability as an attorney have

gradually eroded to the point where he is no longer able to practice law without

substantial threat of harm to the interests of his clients and the public. Accordingly and

with considerable sadness, [I find] that an order pursuant to section 6007(b)(3) is both

appropriate and necessary.”

Following his placement on inactive status, Saba unsuccessfully pursued several

strategies to challenge the result of his hearing. He sought review of his status

determination within the State Bar; sued the parties involved in the hearing in state court;

lodged a complaint against Dr. Lareau with the California Board of Psychology; and filed

a lawsuit in the Central District of California alleging the defendants engaged in racial

discrimination, which the court dismissed as frivolous.

C. Saba’s Claims Against Virgo and Summary Judgment

On May 10, 2018, Saba filed this lawsuit, his second state court action, in which

he sought over $1 million in compensatory damages as well as punitive damages. He

asserted eight causes of action against his former attorney—(1) violation of constitutional

due process under both state and federal constitutions; (2) racial discrimination in

violation of 42 U.S.C. § 1983; (3) unfair business practices (Bus. & Prof. Code, § 17200

et seq.); (4) breach of fiduciary duty; (5) breach of contract; (6) fraud; (7) intentional

infliction of emotional distress; and (8) professional negligence.

6 Saba alleged Virgo had conspired with the State Bar to deprive him of his license.

He claimed Virgo was appointed based on the “understanding” that he would “follow the

State Bar’s orders of what to do and what not to do.”

According to Saba, Virgo secretly worked with the prosecutor and the State Bar to

obtain irrelevant medical records without his consent, appoint an unqualified medical

examiner (Dr. Lareau) to provide a false opinion, and allow his examination to last six

and a half-hours when the order stated it could not exceed six hours. Saba alleged Virgo’s

performance fell below professional standards when he failed to raise sufficient

objections to Dr. Lareau’s testimony during the hearing and failed to conduct additional

discovery and depositions, which, Saba claims, would have “discovered admissible

evidence to defeat the charges raised by the State Bar.”

On July 7, 2021, Virgo moved for summary judgment. Although Saba did not

include Virgo’s motion in the appellate record, we are able to review the trial judge’s

ruling because the record does contain the separate statement of undisputed facts and

declarations Virgo submitted to support his motion.

As to Saba’s first two causes of action—violation of due process and racial

discrimination—Virgo argued he is not a government attorney and was not acting under

color of state law when he represented Saba. In support, he submitted his own declaration

stating he was a private attorney, as well as the declaration of his attorney, Frances

O’Meara, stating the same thing. He also submitted an order from the Central District

7 dismissing Saba’s federal case against Virgo and the other defendants, in which the court

concluded that Virgo was “not a state actor.”

As to the remaining six causes of action, Virgo argued there was no evidence to

show (1) that he had conspired with anyone from the State Bar to deprive Saba of his

license or (2) that Saba suffered any injury or damages. In support, he submitted Saba’s

discovery responses and portions of his deposition testimony in which he admitted he had

no documentary or testimonial evidence of a conspiracy. Virgo also submitted evidence

Saba had not been employed for a number of years and no longer wished to practice law.

He submitted a letter from August 2017, in which Saba told Dr. Lareau, “I made it clear

to you and to this Honorable Court that (1) I do not want to practice law in this country;

(2) that I have not taken a new case in 2 to 3 years,” and that all he wanted to do was

complete a case he had taken pro bono because he didn’t want to abandon a client who

couldn’t afford legal services.

Virgo also submitted the transcript of Saba’s closing statements in his State Bar

hearing in which he told the judge he no longer wanted to practice law and was

effectively retired anyway, with the exception of the pro bono case. Saba said, “This is

my first time facing any charges by the State Bar. I do not wish to practice law anymore,

but my main problem is this one pro bono case that’s been hanging for years. My client

does not have any money. I have tried to find other attorneys to take over. Mr. Virgo also

helped out, talked to at least five lawyers. Nobody wants to take the case over. [¶] I feel

that I’m at the end of settling this case and, based on my 30 years’ experience, I think it

8 should be resolved in one year. I don’t mind signing a stipulation that I’ll be out of the

practice if I’m given the year to finish this case.”

In support of his opposition to the summary judgment motion, Saba submitted his

own declaration. Regarding the first two claims based on federal law, Saba declared

Virgo had “acted under color of law” when he discriminated against him on the basis of

race and denied him equal protection of the laws. In his separate statement of disputed

material fact, Saba argued Virgo “was carrying out a governmental function” at his State

Bar hearing. As proof of a conspiracy and of Virgo’s deficient performance, Saba

repeated in his declaration the allegations of conspiracy from his complaint. In response

to Virgo’s evidence that he was effectively retired and no longer wished to practice law

for a salary, Saba argued his previous statements were irrelevant.

On September 21, 2021, San Bernardino County Superior Court Judge John M.

Tomberlin held a hearing on the summary judgment motion and announced his tentative

decision to grant the motion. He found that Virgo had carried his burden of showing Saba

could not establish at least one element of his claims and Saba had not carried his burden

of raising a triable issue of material fact in response. The parties submitted on the

tentative opinion, and the judge granted summary judgment in Virgo’s favor.

9 II

ANALYSIS

A. Standard of Review

Summary judgment is properly granted when “all the papers submitted show that

there is no triable issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) We review a grant of

summary judgment de novo and decide independently whether the facts not subject to

triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v.

Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th

317, 334.)

When a defendant moves for summary judgment on a claim for which the plaintiff

would have the burden of proof at trial by a preponderance of the evidence, the defendant

may, but need not, present evidence that conclusively negates an element of the

plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853

(Aguilar).) Alternatively, the defendant may present evidence to “show[ ] that one or

more elements of the cause of action . . . cannot be established” by the plaintiff. (Code

Civ. Proc., § 437c, subd. (p)(2); see Aguilar, at p. 853.) And a defendant can make that

showing by “present[ing] evidence that the plaintiff does not possess, and cannot

reasonably obtain, needed evidence—as through admissions by the plaintiff following

extensive discovery to the effect that he has discovered nothing.” (Aguilar, at p. 855; see

also Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 110 [“Such evidence may consist

10 of the deposition testimony of the plaintiff'’s witnesses, the plaintiff’'s factually devoid

discovery responses, or admissions by the plaintiff in deposition or in response to

requests for admission that he or she has not discovered anything that supports an

essential element of the cause of action”].)

Once the defendant clears this initial hurdle, the burden shifts to the plaintiff to

demonstrate a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 849-851.)

The plaintiff does so by producing evidence that “would allow a reasonable trier of fact

to find the underlying fact in favor of the party opposing the motion in accordance with

the applicable standard of proof.” (Id. at p. 850.)

We review the trial court’s ruling on a summary judgment motion de novo,

liberally construing the evidence in favor of the party opposing the motion and resolving

all doubts about the evidence in favor of the opponent. (Miller v. Department of

Corrections (2005) 36 Cal.4th 446, 460.)

B. Virgo Is Entitled to Summary Judgment

Saba contends the judge erred in granting summary judgment in Virgo’s favor. We

disagree.

Virgo’s approach to summary judgment was to pinpoint elements common to

certain claims and demonstrate that Saba lacked evidence to prove those elements.

Starting with the due process and discrimination claims, Virgo argued Saba could not

prove he was acting under color of state law. Proof of state action—that the defendant

was acting under color of state law when he violated the plaintiff’s constitutional rights—

11 is a necessary element of both claims. (See West v. Atkins (1988) 487 U.S. 42, 48; Parratt

v. Taylor (1981) 451 U.S. 527, 535-537.)

To support his argument, Virgo submitted declarations from himself and his

attorney stating that during the State Bar hearing he represented Saba in his capacity as a

private attorney. This evidence was sufficient to carry his initial burden as a moving

defendant. An attorney appointed to represent a client in a state proceeding does not

become a state actor by participating in the proceeding. (See, e.g., Jones v. Whisenand

(2017) 8 Cal.App.5th 543, 559 [“It is well established that public defenders performing a

lawyer’s traditional functions as counsel to a defendant do not act under color of state

law”].)

As to the remaining six causes of action, Virgo argued that Saba could not prove

he suffered damages nor could he prove the existence of a conspiracy. Proof that the

defendant’s conduct resulted in damages is a necessary element of each claim. (See State

of Cal. ex rel. Metz v. CCC Information Services, Inc. (2009) 149 Cal.App.4th 402, 419

[conspiracy requires proof of “the damage resulting from [the wrongful] acts”]; Coscia v.

McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 [a professional negligence claim

requires proof of “actual loss or damage resulting from the attorney’s negligence”];

D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th

790, 800 [same for breach of contract claims]; O'Neal v. Stanislaus County Employees'

Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215 [breach of fiduciary duty]; Lim v.

The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 694 [fraud]; Christensen v. Superior

12 Court (1991) 54 Cal.3d 868, 903 [intentional infliction of emotional distress].) And as

pled in the complaint, Saba’s claims for unfair business practices, professional

negligence, breach of contract and fiduciary duties, fraud, and intentional infliction of

emotional distress all hinge on the existence of a conspiracy between Virgo, the State

Bar, and Dr. Lareau. As a result, all of these claims, not just the conspiracy claim, require

proof of “the formation and operation of the conspiracy.” (State of Cal. ex rel. Metz, at

p. 419.)

To demonstrate Saba couldn’t prove the existence of a conspiracy, Virgo

submitted evidence that Saba admitted in discovery responses and at his deposition that

he had no documentary or testimonial evidence of an agreement between Virgo and the

State Bar to deprive him of his license to practice law. This evidence was sufficient to

satisfy his initial burden as a moving defendant. (See Aguilar, supra, 25 Cal.4th at p. 855

[defendant can show plaintiff’s lack of evidence “through admissions by the plaintiff

following extensive discovery to the effect that he has discovered nothing”].) “When

defendants conduct comprehensive discovery, plaintiffs cannot play ‘hide the ball.’”

(Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106.) If the plaintiffs

respond “to comprehensive interrogatories seeking all known facts with boilerplate

answers that restate their allegations, . . . the burden of production will almost certainly

be shifted to [the plaintiffs] once defendants move for summary judgment and properly

present plaintiffs’ factually devoid discovery responses.” (Id. at p. 107, fn. omitted.)

13 To demonstrate Saba couldn’t prove he suffered damages, Virgo submitted

evidence that Saba admitted he was effectively retired (with the exception of one pro

bono matter) and no longer wished to practice law for a salary. This admission satisfies

Virgo’s burden of proof because it tends to disprove Saba’s allegation that placement on

inactive status caused him to suffer over $1 million in compensatory damages. If Saba

was no longer earning a salary from practicing law and—with the exception of one pro

bono case—wanted to retire, then he cannot prove he suffered any financial injury from

being placed on inactive status.

Saba responded to Virgo’s motion not with evidence tending to counter Virgo’s

evidence but with conclusory, self-serving statements. To counter Virgo’s evidence that

he was not a state actor, Saba simply stated in his declaration that Virgo did in fact

violate his constitutional rights and did so under “color of law.” To counter his prior

admission that he had no proof of a conspiracy, Saba simply repeated in his declaration

the allegations of conspiracy from his complaint. And to counter his prior admission that

he no longer wished to practice law for a salary, he objected that his admission was

irrelevant.

Saba’s response was inadequate. To survive a motion for summary judgment, a

plaintiff’s “[a]ffidavits must cite evidentiary facts, not legal conclusions or ultimate

facts.” (Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 994.)

And, in determining whether any triable issue of material fact exists, the judge may give

“great weight” to admissions made in discovery and “disregard contradictory and self-

14 serving affidavits of the party.” (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441,

1451.) As a result, the judge was free to disregard Saba’s self-serving legal conclusions in

the face of Virgo’s evidence.

The purpose of summary judgment is to “provide courts with a mechanism to cut

through the parties’ pleadings in order to determine whether, despite their allegations,

trial is in fact necessary to resolve their dispute.” (Aguilar, supra, 25 Cal.4th at p. 843,

italics added).) In other words, a summary judgment motion moves past the pleading

state and asks plaintiffs to produce evidence to support their allegations. By simply

repeating his allegations in the face of Virgo’s evidence, Saba failed to demonstrate the

need for a trial on his claims. As a result, we conclude the judge correctly granted

summary judgment in Virgo’s favor.

Our conclusion is not altered by Saba’s challenges to various rulings the judge

made in response to the party’s evidentiary objections. Simply put, because none of the

rulings Saba challenges pertains to the evidence the judge relied on to grant summary

judgment, he cannot demonstrate prejudice (even if could demonstrate error). (See

Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1449 [an

“erroneous evidentiary ruling requires reversal only if ‘there is a reasonable probability

that a result more favorable to the appealing party would have been reached in the

absence of the error’”].)

15

III

DISPOSITION

We affirm the judgment. In the interests of justice, the parties shall bear their own

costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER Acting P. J.

FIELDS

J.

16