{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}
REC'D & FILED
2014 JAN 9 PM 3:39
ALAN GLOVER CLERK
BY DEPUTY _________
Matthew D. Francis (6978)
Adam P. McMillen (10678)
WATSON ROUNDS
5371 Kietzke Lane
Reno, NV 89511
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for Plaintiff Jed Margolin
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.: 1
OPPOSITION TO MOTION TO SET ASIDE DEFAULT JUDGMENT
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The entire basis of Zandian's motion to set aside the default is the unfounded allegation that John Peter Lee provided the Court with an incorrect last known address for Zandian when he withdrew and that since April 26, 2012 Zandian did not receive the papers, pleadings and motions in this matter. Zandian also alleges he has lived in France since August of 2011. However, the evidence shows the address John Peter Lee provided to the Court was correct and Zandian continued to live and maintain addresses in both Nevada and California since August of 2011. Therefore, Zandian's motion to set aside must be denied.
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I. The Default Judgment Should Be Upheld Because Zandian Maintained His San Diego Address And Knew About This Matter After His Counsel Withdrew And Continued To Receive Notice Of This Matter
"Default judgment will be upheld where the normal adversary process has been halted due to an unresponsive party, because diligent parties are entitled to be protected against interminable delay and uncertainty as to their legal rights." Skeen v. Valley Bank of Nevada, 89 Nev. 301, 303, 511 P.2d 1053,1054 (1973); see also Hamlett v. Reynolds, 114 Nev. 863, 865, 963 P.2d 457, 458 (1998) (same).
After filing several motions to dismiss and to set aside the prior default judgment and after filing a general denial to the amended complaint, Zandian's counsel, John Peter Lee, withdrew from his representation of Zandian. When Mr. Lee filed his motion to withdraw he provided a last known address for his client: 8775 Costa Verde Blvd, San Diego, CA. Without providing an affidavit or any evidence, Zandian now argues that the address Mr. Lee provided to the Court was incorrect. However, the address Mr. Lee provided to the Court is the same address Mr. Lee provided to the Nevada Supreme Court in another unrelated matter in another motion to withdraw. See Notice of Withdrawal, Amended Certificate of Mailing and Motion to Withdraw, dated 2/22/13 and 2/13/13, respectively, attached hereto as Exhibit 1.
Also, 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. See Exhibit 2 (check from Golden Enterprises to Zandian at 8775 Costa Verde Blvd, San Diego, CA, dated 10/31/12 and endorsed by Zandian); Exhibit 3 (check from Golden Enterprises to Zandian at 8775 Costa Verde Blvd, San Diego, CA, dated 1/30/13 and endorsed by Zandian); Exhibit 4 (Wells Fargo withdrawal slip filled out and signed by Zandian, dated 2/20113 (Wells Fargo does not have any branches in France)); Exhibit 5 (check from and signed by Zandian to John Peter Lee, dated 1/13/12, with 8775 Costa Verde Blvd,
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San Diego, CA, printed on the check); Exhibit 6 (checks, dated 11/28/11, 12/2/11, 1/25/12, 2/29/12, 3/1/12, 10/30/12, 1/15/13, showing Zandian maintained his 8775 Costa Verde Blvd, San Diego, CA, address, including checks to the IRS and the Washoe County Treasurer); Exhibit 7 (Wells Fargo bank statements from December 2011, March 2012 and April 2012 showing the 8775 Costa Verde Blvd, San Diego, CA, address); see also Exhibit 8 (Wells Fargo Visa statements, dated August 2011, August 2013, September 2013, October 2013 showing a San Diego address); Exhibit 9 (Visa statement, dated 4/10/13, showing Zandian made four purchases in California on 3/15/13 which is the same date Zandian alleges he filed the appeal with the French address); Exhibit 10 (Visa statements showing Zandian making many purchases in California, not France, in September and October of 2011); Exhibit 11 (property summary screen for one of Zandian's Clark County properties currently listing his 8775 Costa Verde, San Diego, CA, address, not France); Exhibit 12 (checks, dated 1/25/12, 1/24/13, 2/21/13, 2/24/13 and 6/30/13, from Zandian to the Secretary of State of California, United States Treasury, Employment Development Department, and the Internal Revenue Service, all with the 8775 Costa Verde, San Diego, CA, address, and all of the checks are written for Optima Technology Corp, which is another named defendant in this matter).
Also, there is-no doubt Zandian had personal knowledge about this lawsuit He filed several papers and pleadings and paid his lawyer for this matter before his alleged move to France. See Zandian's filings in this matter; see also Exhibit 13, which is a March 31, 2011 check Zandian wrote to John Peter Lee, which clearly shows Zandian hand wrote "Zandian v. Margolin" on the "For" line.
Zandian has not provided any evidence that he lived in France at any time from August 2011 to the present. No affidavit is attached to the motion to set aside. No evidence is attached to the motion to set aside. A French address on a notice of appeal in another matter is not evidence. More importantly, as demonstrated above, Zandian continued to maintain his
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San Diego address and continued to live in the United States at all times relevant to the default judgment. Therefore, Zandian continued to receive notice[1] of all of the papers, pleadings and motions in this matter and he simply chose to ignore this matter. As a result, the default should be upheld.
H. The Default Judgment Is The Proper Sanction For Failure To Make Discovery Due To Zandian's Willfulness, Bad Faith, And Fault And Not Due To Inability
On December 14, 2012, Plaintiff served Zandian with a motion for sanctions under NRCP 37, as Zandian had failed to respond to written discovery and he failed to respond to the Plaintiff's efforts to meet and confer regarding his failure to respond to the written discovery. See Motion for Sanctions, dated 12/14/12, on file herein. Zandian also failed to respond to the motion for sanctions. On January 15, 2013, the Court granted the motion for sanctions, struck Zendian's General Denial, and awarded Plaintiff his fees and costs related to the motion.
"NRCP 37(b)(2)(C) grants the district court authority to strike the pleadings in the event that a party fails to obey a discovery order." Foster v. Dingwall, 227 P.3d 1042, 1048 (Nev. 2010). "In addition, [the Nevada Supreme] court has upheld entries of default where litigants are unresponsive and engage in abusive litigation practices that cause interminable delays." Id. (citations omitted).
Zandian's discovery abuses and complete failure to respond evidences his willful and recalcitrant disregard of the judicial process, which prejudiced Plaintiff. Foster, 227 P.3d at 1049 (citing Hamlett v. Reynolds, 114 Nev. 863, 865, 963 P.2d 457,458 (1998) (upholding the district court's strike order where the defaulting party's "constant failure to follow [the court's] orders was unexplained and unwarranted"); In re Phenylpropanolamine (PPA) Products, 460
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[1] Zandian fails to inform the Court as to how be all of a sudden came back from France and found out about the default judgment in this matter. Zandian fails to indicate how or where he found out about the default. The fact is Zandian continued to receive the papers, pleadings and motions in this matter. For reasons known only to Zandian it is only now that Zandian resurfaces to again move the Court to set aside the default judgment
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F.3d 1217, 1236 (9th Cir.2006) (holding that, with respect to discovery abuses, "[p]rejudice from unreasonable delay is presumed" and failure to comply with court orders mandating discovery "is sufficient prejudice")).
In light of Zandian's repeated and continued abuses, the policy of adjudicating cases on the merits would not be furthered in this case, and the ultimate sanctions are necessary to demonstrate to Zandian and future litigants that they are not free to act with wayward disregard of a court's orders. Foster, 227 P.3d at 1049. Moreover, Zandian's failure to oppose Plaintiff s motion to strike the General Denial constitutes an admission that the motion was meritorious. Id. (citing King v. Cartledge, 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)).
III. Zandian Has Not Shown Good Cause
NRCP 55(c) states that a default judgment maybe set aside for "good cause shown" "in accordance with Rule 60." The "good cause" contemplated by Rule 55(c) does not embrace inexcusable neglect. See Intermountain Lumber & Bldrs. Supply, Inc. v. Glens Falls Ins. Co., 83 Nev. 126,424 P.2d 884 (1967).
As Zandian maintained his San Diego address and was fully aware of this action, it was inexcusable for Zandian to ignore this action. Moreover, Zandian has failed to provide any evidence of "good cause" to set aside the judgment He has only alleged that his lawyer provided the incorrect address and that he lived in France. He fails to provide any affidavit or evidence that the address was incorrect or that he actually lived in France. He also fails to rebut the fact that he continued to receive all papers and pleadings in this matter. The presumption is that he did receive all papers in this matter, as manifested by the fact that he knew about this case and knew about the default judgment and now seeks to set aside the judgment.
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Based upon the fact that Zandian knew about this case and continued to receive the papers and pleadings, from this matter, it was inexcusable for Zandian not to respond to the earlier discovery requests and motions. In addition, Zandian has not shown a meritorious defense to the claims asserted by the Plaintiff. Merely referring the Court back to Zandian's prior motions to dismiss and general denial is not a demonstration of a meritorious defense.
Zandian has not demonstrated good cause. In fact, Zandian has only demonstrated inexcusable neglect by his willful failure to respond to this action. Since a default judgment normally must be viewed as available only when the adversary process has been halted because of a non-responsive party, Christy v. Carlisle, 94 Nev. 651,,5 84 P.2d 687 (1978), Zandian's motion must be denied.
IV. Zandian Has Not Shown Mistake, Inadvertence, Surprise Or Excusable Neglect
NRCP 60(b) allows a judgment to be set aside when a party can show, mistake, inadvertence, surprise or excusable neglect. See Gutenberger v. Continental Thrift and Loan Company, 94 Nev. 173,175, 576 P.2d 745 (1978); see also State v. Consolidated Va. Mining Co., 13 Nev. 194 (1878) (where corporation sued in four different but identical suits and responded and defended two the corporation's lawyer filed affidavits showing the corporation was not even aware of the other two suits due to an honest mistake was sufficient to justify setting aside default judgments in the two suits); Cicerchia v. Cicerchia, 77 Nev. 158, 360 P.2d. 839 (1961) (court has wide discretion in determining what neglect is excusable and what is inexcusable).
Zandian seeks relief under Rule 60(b) based only on excusable neglect. See Motion to Set Aside, dated 12/19/13, 8:14-19. More specifically, Zandian claims John Peter Lee provided this Court with an incorrect address when he withdrew and that Zandian never received any pleadings or discovery in this matter after April 26, 2012. See id at 9:12-16.
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However, the evidence demonstrates that John Peter Lee did provide a correct address. Also, Zandian has failed to set forth specific, objective facts and evidence to substantiate his allegations that he did not receive his mail or that he moved to France. The evidence is that he did receive all of the pleadings and papers on file herein at his San Diego address. In addition, Zandian knew this matter was ongoing and willfully ignored all the papers he received. Therefore, 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 not due to circumstances that constitute excusable neglect under MRCP 60(b).
It is inexcusable for Zandian to willfully ignore and refuse to respond to the discovery, motions or applications filed in this matter. Thus, because Zandian maintained his San Diego address and knew about this matter and willfully ignored and delayed this case, Zandian has not and cannot set forth any facts or evidence that would demonstrate that he promptly applied to remove the judgment, lacked intent to delay the proceedings, was ignorant of the procedures of the court or had good faith. See Ogle v. Miller, 87 Nev. 573, 576, 491 P.2d 40, 42 (1971). Zandian's motion must be denied.
V. Zandian Has Not Demonstrated A Meritorious Defense
To demonstrate a meritorious defense, Zandian must show (1) admissible testimony or affidavits that, if true, would tend to establish a defense to all or part of the claims for relief asserted by Plaintiff, (2) the opinion of counsel based upon facts related to him that a meritorious defense exists to all or part of the claims asserted; (3) a responsive pleading in good faith that, if true, would tend to establish a meritorious defense to all or part of the claims for relief asserted; and (4) any combination of the above, See Ogle, 87 Nev. 573, 576, 491 P.2d 40. Zandian has failed to provide any of these things.
However, the requirement to show a meritorious defense has been overruled and is no longer a requirement to set aside a judgment Epstein v. Epstein, 113 Nev. 1401 , 1405, 950
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P.2d 771, 773 (1997). Nevertheless, Zandian's motion to set aside alleges there is a meritorious defense.
Zandian points to his June 9, 2011 and November 16, 2011 motions to dismiss and his March 5, 2012 General Denial as evidence of a meritorious defense. However, all of Zandian's motions to dismiss only dealt with personal service and personal jurisdiction, not the claims at issue. Zandian's motions to dismiss did not set forth any facts regarding the claims in the Complaint or Amended Complaint. In addition, Zandian's General Denial is just that, a general denial. The General Denial fails to provide any affirmative defenses to the claims at issue. In short, Zandian has never demonstrated a meritorious defense to any of the claims at issue in this matter. This is because Zandian does not have a meritorious defense.
VI Conclusion
For the reasons stated above, Mr. Margolin respectfully requests that this Court deny Mr. Zandian's motion to set aside the default judgment.
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 this 9th clay of January, 2014.
BY: ____________________
Matthew D. Francis (6978)
Adam P. McMillen (10678)
WATSON ROUNDS
5371 Kietzke Lane
Reno, NV 89511
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for Plaintiff Jed Margolin
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CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I certify that I am an employee of Watson Rounds, and that on this date, I deposited for mailing, in a sealed envelope, with first-class postage prepaid, a true and correct copy of the foregoing document, OPPOSITION TO MOTION TO SET ASIDE DEFAULT JUDGMENT, addressed as follows:
Reza Zandian
8775 Costa Verde Blvd.
San Diego, CA 92122
Reza Zandian
8775 Costa Verde Blvd, Apt. 501
San Diego, CA 92122
Alborz Zandian
9 Almanzora
Newport Beach, CA 92657-1613
Reza Zandian
8401 Bonita Downs Road
Fair Oaks, CA 95628
Optima Technology Corp.
A California corporation
8401 Bonita Downs Road
Fair Oaks, CA 95628
Optima Technology Corp.
A Nevada corporation
8401 Bonita Downs Road
Fair Oaks, CA 95628
Optima Technology Corp.
A California corporation
8775 Costa Verde Blvd. #501
San Diego, CA 92122
Optima Technology Corp.
A Nevada corporation
8775 Costa Verde Blvd. #501
San Diego, CA 92122
Johnathon Fayeghi, Esq.
Hawkins Melendrez
9555 Hillwood Dr. Suite 150
Las Vegas, NV 89134
Counsel for Reza Zandian
Dated: January 9, 2014
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Nancy Lindsley
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