{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}
REC'D & FILED
2014 JAN 23 PM 3:42
ALAN GLOVER
DEPUTY CLERK _______
RPLY
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
Nevada Bar No. 12736 H
HAWKINS MELENDREZ, P.C.
9555 Hillwood Drive, Suite 150
Las Vegas, Nevada 89134
Phone: (702) 318-8800
Fax:(702) 318-8801
ghawkins@hawkinsmelendrez.com
Attorneys for Defendant
Reza Zandian aka Goamreza Zandian aka Gholamreza ZandianJazi aka Reza Jazi aka J Reza Jazi aka G. Reza Jazi aka Ghononreza Zandian Jazi
In The First Judicial
District Court Of The State Of Nevada
In and For Carson City
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JED MARGOLIN, an individual, Plaintiff, VS.
OPTIMA TECHNOLOGY CORPORATION, a California corporation, OPTIMA TECHNOLOGY CORPORATION, a Nevada corporation, REZA ZANDIAN aka GOLAMREZA ZANDIANJAZI aka GHOLAM REZA ZANDIAN aka REZA JAZI aka J. REZA JAZI aka G. REZA JAZI aka GHONONREZA ZANDIAN JAZI, an individual, DOE Companies 1-10, DOE Corporations 11-20, and DOE Individuals 21-30, Defendants.
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Case No.: 09OC00579 1B Dept. No.: I
DEFENDANT ZANDIAN'S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT JUDGMENT
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Defendant REZA ZANDIAN ("Zandian") by and through his attorney Geoffrey W. Hawkins, Esq., of the law firm HAWKINS MELENDREZ P.C., and pursuant to NRCP 55 and 60,
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hereby submits DEFENDANT ZANDIAN'S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT JUDGMENT.
This Reply is made and based upon the papers and pleadings on file herein, the Memorandum of Points and Authorities, the Affidavit of Reza Zandian attached hereto as Exhibit A, and any oral argument this Honorable Court permits at the hearing.
DATED this 21st day of January, 2014.
HAWKINS MELENDREZ, P.C.
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
Nevada Bar No. 12736
9555 Hillwood Drive, Suite 150
Las Vegas, NV 89134
Phone: (702) 318-8800
Attorneys for Defendant Reza Zandian
POINTS AND AUTHORITIES
I.
INTRODUCTION
The crux of Plaintiff's Opposition is that Defendant REZA ZANDIAN ("Zandian") maintained his San Diego address, knew about the instant matter after his prior counsel withdrew, and continued to receive notice of the instant matter after his prior counsel withdrew. Plaintiff attached eleven exhibits to his Opposition in an attempt to demonstrate that Defendant Zandian maintained the San Diego address provided to the Court by John Peter Lee, Esq., and continued to live in the United States rather than France. However, said exhibits fail to prove anything with regard to Defendant Zandian's residency. Furthermore, said exhibits fail to prove that Defendant Zandian continued to receive notice of the papers, pleadings and motions in the instant matter.
The simple truth is that Defendant Zandian has resided in Paris, France since August 2011 and due to the fact that his prior counsel provided the Court with an incorrect address upon withdrawal, Defendant Zandian did not receive any pleadings or written discovery related to the instant matter since April 26, 2012. See Affidavit of Reza Zandian in Support of Motion to Set Aside Default Judgment, attached hereto as Exhibit A. As such, Defendant Zandian's failure to respond to Plaintiffs written discovery and failure to oppose Plaintiffs Motion for Sanctions and Application for Entry of Default Judgment were clearly due to circumstances that constitute excusable neglect under NRCP 60(b)(1).
In addition, as Defendant Zandian had already appeared in this action, Plaintiff was required to provide Defendant Zandian with a three day notice of Plaintiffs Application for Entry of Default Judgment. However, Plaintiff failed to provide Defendant Zandian with the required three day notice. In fact, Plaintiff's Opposition does not dispute the fact that Plaintiff failed to provide a three day notice of Plaintiffs Application for Entry of Default Judgment. Pursuant to the holding in Christy v. Carlisle 94 Nev. 651, 584 P.2d 687 (1987), Plaintiff's failure to serve Defendant Zandian with a three day notice of Plaintiff s Application for Entry of Default Judgment voids the Default Judgment against Defendant Zandian.
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LEGAL ARGUMENT
A. Plaintiff Failed To Provide Defendant Zandian With Written Notice Of Application For Default Judgment.
As this Court is aware, if a defendant enters an appearance or if the plaintiff knows of the identity of the defendant's counsel, the plaintiff has an obligation to notify the defendant of his intent to take a default. Christy v. Carlisle, 94 Nev. 651, 594 P.2d 687 (1987); Rowland v. Lepire, 95 Nev. 639, 600 P.2d 237 (1979); Gazin v. Hoy, 102 Nev. at 438; Nev. Sup.CT.R. 1752. A failure to provide said notice requires a default to be set aside. Id.
As asserted in Defendant Zandian's Motion, Plaintiff failed to provide Defendant Zandian with the required three-day notice prior to filing his April 17, 2013 Application for Entry of Default Judgment. Plaintiff, through his counsel, had knowledge of Defendant Zandian's French address as early as March 2013. Said knowledge came from Watson & Rounds' (Plaintiff's counsel's firm) representation of Fred Sadri in the Nevada Supreme Court Case No. 62839. (See Notice of Appeal in Nevada Supreme Court Case No. 62839, attached hereto as Exhibit B. Said Notice of Appeal contains the French address of Defendant Zandian and was mailed to Watson & Rounds as counsel for Fred Sadri in March 2013.) Pursuant to the holdings in Christy and Rowland, Plaintiffs failure to provide written notice of his Application for Default Judgment requires this Court set aside the June 24, 2013 Default Judgment against Defendant Zandian.
Moreover, Plaintiffs Opposition completely fails to oppose and/or discuss the absence of the required three-day notice of intent to take default. Said failure to oppose on the part of Plaintiff should constitute an admission that Plaintiff failed to provide Defendant Zandian with the required notice and consent to the granting of Defendant Zandian's Motion to Set Aside Default Judgment in line with the mandates of this Court's rules. See King v. Cartlidge, 121 Nev. 926, 927, 124 P.3d 1161, 1162 (2005) (stating that an unopposed motion may be considered as an admission of merit and consent to grant the motion) (citing DCR 13(3)); See also First Judicial District Court Rule 15(5) (failure of an opposing party to file a memorandum of points and authorities in opposition to any motion within the time permitted shall constitute a consent to the granting of the motion).
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B. Defendant Zandian Has Demonstrated Excusable Neglect Under NRCP 60(b)
In his Opposition, Plaintiff states "the evidence overwhelmingly demonstrates Zandian maintained the same address John Peter Lee provided to the Court, even after Zandian allegedly moved to France in August 2011, and the evidence similarly demonstrates Zandian continued to live in the United States, not France." The evidence Plaintiff is referring to consists of the following: checks made payable to "Reza Zandian & Niloofar Foughani JT Ten, 8775 Costa Verde Blvd Apt 217, San Diego, CA 92122"; a Wells Fargo withdrawal slip dated February 20, 2013; various Wells Fargo checks signed by Defendant Zandian with the 8775 Costa Verde Blvd, San Diego, CA address printed on the checks; Defendant Zandian's Wells Fargo bank statements with the San Diego address printed on the bank statements; and Visa statements showing purchases made in California in September of 2011 and March of 2013.
Contrary to the assertions made in Plaintiff's Opposition, the aforementioned evidence completely fails to prove that Zandian maintained the 8775 Costa Verde Blvd, San Diego, CA address after he moved to France in August 2011. As represented in Defendant Zandian's Affidavit, attached hereto as Exhibit A and incorporated herein, Defendant Zandian has resided in Paris, France since August 2011 and has not resided at 8775 Costa Verde Blvd., San Diego, CA 92122 since August 2011. The fact that the San Diego address appears on checks made payable to Defendant Zandian and/or issued by Defendant Zandian does not indicate that he continued to reside at said address after August 2011. In fact, it is quite common for a business to have an outdated address on file for a particular individual or for said individual to maintain checks with an outdated address printed on the checks. Moreover, none of the evidence provided by Plaintiff demonstrates that the checks found in Plaintiffs Exhibits 2,3,5,6, and 12 were sent from or received by Defendant Zandian in the United States.
Due to the fact that Defendant Zandian's prior counsel, John Peter Lee Esq., provided the Court with an incorrect address upon withdrawing as counsel, Defendant Zandian never received any pleadings or discovery in this matter after April 26, 2012. Plaintiff's Opposition fails to provide any evidence demonstrating that Defendant Zandian did in fact receive pleadings or discovery in this matter subsequent to April 26, 2012.
As was the case in the Supreme Court case of Stoecklein v. Johnson Elec., Inc., Defendant Zandian's failure to respond to Plaintiffs written discovery and failure to oppose Plaintiff's Motion for Sanctions and Application for Entry of Default Judgment were due to circumstances that constitute excusable neglect under NRCP 60(b)(1). As such, Defendant Zandian's Motion to Set Aside Default Judgment should be granted.
III.
CONCLUSION
Based on the foregoing, Defendant Reza Zandian respectfully requests that the default judgment be set aside to allow him to respond as intended.
AFFIRMATION PURSUANT TO NRS 239B.030
The undersigned does hereby affirm that the preceding document does not contain the social security number of any person.
DECLARATION
The undersigned also declares under penalty of perjury that the foregoing is true and accurate to the best of my knowledge.
Dated this 21st day of January, 2014.
HAWKINS MELENDREZ, P.C.
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
Nevada Bar No. 12736
9555 Hillwood Drive, Suite 150
Las Vegas, NV 89134
Phone: (702) 318-8800
Attorneys for Defendant Reza Zandian
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CERTIFICATE OF SERVICE
Pursuant to Nevada Rules of Civil Procedure 5(b), I hereby certify that, on the 21st day of January, 2014, service of DEFENDANT ZANDIAN'S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT JUDGMENT was made this date by depositing a true copy of the same for mailing, first class mail, at Las Vegas, Nevada, addressed follows:
Matthew D. Francis
Adam P. McMillen
WATSON ROUNDS
5371 Kietzke Lane
Reno, Nevada 89511
Attorneys for Plaintiff
Jed Margolin
_____________________________
an employee of Hawkins Melendrez P.C.
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