{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}
REC'D & FILED
2015 Dec 28 PM 3:20
Susan Merriwether
BY DEPUTY _________
Adam P. McMillen, Bar No. 10678
amcmillen@bhfs.com
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Telephone: (775) 324-4100
Facsimile: (775) 333-8171
Attorney for Plaintiff JED MARGOLIN
IN
THE FIRST JUDICIAL COURT OF THE STATE OF
IN
AND FOR
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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.: 090C00579 1B Dept. No.: 1
OPPOSITION TO MOTION TO WITHDRAW AS COUNSEL
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COMES NOW Plaintiff, Jed Margolin, by and through undersigned counsel of record, Adam P. McMillen of Brownstein Hyatt Farber Schreck, and files this opposition to Severin A. Carlson, Tara C. Zimmerman and Kaempfer Crowell’s Motion to Withdraw as Counsel for Defendant Reza Zandian aka Golamreza Zandianjazi aka Gholain Reza Zandian aka Reza Jazi aka J. Reza Jazi aka G. Reza Jazi aka Ghononreza Zandian Jazi (“Zandian”).
This opposition is made and based upon the following points and authorities, the papers and pleadings on file herein and any other information or oral argument the Court entertains.
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MEMORANDUM OF POINTS AND AUTHORITIES
I. Facts
On March 14, 2012, John Peter
Lee filed an amended motion to withdraw as counsel for Zandian and provided the
Court and counsel with Zandian's last known address in
Thereafter, Zandian failed to respond to discovery or any other papers or pleadings in this matter. As a result, on June 24, 2013, a default judgment was entered against Zandian. On December 20, 2012, Zandian filed a motion to set aside the default judgment and a notice of appearance of new counsel (Johnathon Fayeghi, Esq., of the law firm Hawkins Melendrez P.C.) . On February 6, 2014, the Court denied the motion to set aside the default judgment.
On February 2, 2014, Plaintiff Jed Margolin filed a motion for order to show cause regarding contempt for Zandian's willful violation of the Court's January 13, 2014 Order granting Plaintiff's motion for debtor examination and to produce documents. On February 21, 2014, Zandian filed a substitution of counsel, substituting in the law firm Kaempfer Crowell for Hawkins Melendrez. On March 12, 2014, Zandian filed a notice of appeal regarding the Court's order denying the motion to set aside the default judgment. On March 17, 2014, the Court filed an order denying the request for submission of the motion for order to show cause and stated that the Court was divested of jurisdiction due to Zandian filing a notice of appeal regarding this Court's order related to the default judgment.
On June 10, 2015, Plaintiff
filed another motion for debtor's examination and to produce documents. On
October 19, 2015, the Supreme Court affirmed this Court's orders regarding the
default judgment. On November 6, 2015, after a hearing on the matter, the Court
granted the motion for debtor's examination and to produce documents. In the
November 6, 2015 order, the Court ordered Zandian to appear in
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month of February, 2016. The Court also ordered Zandian to produce documents regarding Zandian's financial information on or before December 21, 2015.
On December 10, 2015, Zandian's counsel filed the current motion to withdraw as counsel. Counsel provides two reasons for the motion to withdraw. The first stated reason is that Zandian has substantially failed to fulfill his obligations to his counsel and further representation would be a financial burden on counsel. See Motion to Withdraw at 3:1-6. The second stated reason is that Zandian "insists upon taking action that the lawyer considers repugnant or with which the lawyer has fundamental disagreement." See id. at 3:7-9. There is no explanation as to what action counsel considers repugnant or with which he has a fundamental disagreement.
Counsel also provided two last
known addresses of Zandian: one in
Also on December 10,2015, Zandian filed a notice of appeal of the order granting Plaintiff's motion for debtor examination and to produce documents.
On December 15, 2015, Zandian's
counsel filed an errata to their motion to withdraw stating that Zandian
"resides in
On December 16, 2015, Zandian's
counsel filed a motion to withdraw as counsel for "Appellant Reza
Zandian" in the Nevada Supreme Court. See Exhibit 1. The reasons given for
that motion to withdraw are that Zandian has failed to fulfill his obligations
and that further representation would result in an unreasonable financial
burden on counsel.
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produce documents, Zandian
"advised Carlson that he wished to pursue the instant appeal of the
November 6 Order." Id. Counsel then states that he agreed to file the
appeal "solely for the purpose of preserving Appellant's appeal."
II. Legal standard
"While a party may
discharge his attorney with or without cause, Morse v.
FJDCR 22(4) (emphasis added). "When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." NRPC 1.16( c) (emphasis added).
III. Allowing counsel to withdraw will delay the production of documents and the debtor's examination that were ordered by this Court on November 6, 2015.
Notwithstanding any potential good cause, allowing counsel to withdraw will delay the debtor's examination and the production of documents that were ordered by this Court on November 6, 2015. The documents were ordered to be produced on or before December 21, 2015. The debtor's examination was ordered to take place in February, 2016. The motion to withdraw comes immediately before the deadline to produce documents and shortly before the debtor's examination. If counsel is allowed to withdraw now, these items will be unnecessarily
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delayed and Plaintiff will be highly prejudiced thereby. In addition, a delay in these proceedings will give Zandian time to hide or dispose of assets.
IV. Zandian's last two addresses appear to be unreliable
At the core of Zandian's appeal
of this Court's denial of the Motion to Set Aside the Default Judgment was his
counsel's (Kaempfer Crowell's) assertion that it was not reasonable for Plaintiff
or the Court to rely on the address that John Peter Lee (Zandian's first
Counsel) provided when he withdrew. Now counsel is leaving two addresses for
Zandian in its motion to withdraw, one in
In addition, according to FJDCR 22(3), if an attorney withdraws, the attorney must provide an "address at which the party is to be served with notice of all further proceedings." Also, SCR 4 7, when an attorney withdraws another attorney must be appointed or the party must appear in person. Given the unreliability of the addresses provided to the Court and given Zandian's history with this case, it would appear that if counsel is permitted to withdraw, Zandian will ignore this matter and execution of the judgment will be delayed and Plaintiff will be greatly prejudiced thereby and Zandian will make a mockery of this Court and its orders.
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V. Counsel has not established good cause
Counsel has not explained how Zandian has failed to fulfill his obligations or what action Zandian wants to take or that he might have already taken that counsel finds repugnant or with which counsel has a fundamental disagreement. Counsel should be compelled to disclose the actual reasons for the motion to withdraw so that the Court can properly weigh the evidence to determine the propriety of withdrawal. Without providing the basis therefore, there cannot be good cause to withdraw.
VI. Conclusion
Based upon the above, counsel's motion to withdraw should be denied. If the Court is in any way inclined to grant the motion, Plaintiff requests an order from the Court requiring Zandian to confirm an address, before any withdrawal, whereby Plaintiff and the Court can communicate regarding this matter with Zandian.
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.
DATED: December 28, 2015.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
By: ____________________
Adam P. McMillen
Attorneys for Plaintiff JED MARGOLIN
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