{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}
JASON D. WOODBURY Nevada Bar No. 6870
SEVERIN A. CARLSON Nevada Bar No. 9373
KAEMPFER CROWELL
Telephone: (775) 884-8300
Facsimile: (775) 882-0257
jwoodbury@kcnvlaw.com
Attorneys for Defendant,
REZA ZANDIAN
In
The First Judicial District 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.: 09OC00579 1B Dept. No.: I
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OPPOSITION TO MOTION FOR ORDER TO SHOW CAUSE REGARDING CONTEMPT
COMES NOW Defendant, REZA ZANDIAN, by and through his undersigned counsel of record, Kaempfer Crowell, and hereby opposes the Motion for Order to Show Cause Regarding Contempt ("Motion") filed by Plaintiff in this matter on February 12, 2014.
This Opposition is made pursuant to FJDCR 15 and is based on NRS 21.270,
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NRCP 69, the attached Memorandum of Points and Authorities, all papers and pleadings on file herein, and any evidence and argument allowed by the Court at a hearing on the Motion granted pursuant to FJDCR 15 or D.C.R. 15.
DATED this 3rd day of March, 2014.
KAEMPFER CROWELL
JASON D. WOODBURY
Nevada Bar No. 6870
SEVERIN A. CARLSON
Nevada Bar No. 9373
KAEMPFER CROWELL
Telephone: (775) 884-8300
Facsimile: (775) 882-0257
e-mail: jwoodbury@kcnvlaw.com
scarlson@kcnvlaw.com
Attorneys for Defendant, REZA ZANDIAN
BY:___________________
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MEMORANDUM OF POINTS AND AUTHORITIES
I. Factual Background
The following facts are pertinent to this Court's analysis in regard to Plaintiff’s request for the issuance of an order to show cause why Reza Zandian should not be held in contempt of this Court:[1]
(1)
Reza Zandian does not reside in
(2) On January 13, 20x4, this Court issued its Order Granting Plaintiffs Motion for Debtor Examination and to Produce Documents ("Order for Debtor Examination")[3];
(3) On January 16, 2014, counsel for Plaintiff served by regular mail a notice of the entry of the Order for Debtor Examination upon counsel for Reza Zandian[4];
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[1] Although only a select few facts are relevant to the actual issue before the Court, Plaintiffs Motion offers several pages of "background", most of which is obviously designed to engender bad will and disdain for Mr. Zandian. Motion at 3:20 - 7:15. This Opposition will make no effort—because none is called for—to refute material which is immaterial to the question of whether this Court should issue the requested order. Suffice it to say, for now, that there are two sides to this story.
[2] This is not to assert that there is no dispute over
the residence of Mr. Zandian. Mr. Zandian
continues to maintain that he resides in
[3] See Order Granting Pl.'s Mot. for Debtor Examination and to Produce Documents (Jan. 13, 2014).
[4] See Notice of Entry of Or. Granting Pl.'s Mot. for Debtor Examination and to Produce Documents (Jan. 16, 2014) (attached hereto and marked as Exhibit 3).
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(4) The Order
for Debtor Examination required Reza Zandian to
appear on February 11, 2014 at 9:0o a.m. before the Court in
(5) The Order for Debtor Examination required Reza Zandian to produce 11 categories of documents to the office of Plaintiffs counsel no later than February 4, 2014. Those categories of documents included, but were not limited to:
(a) Any and all information and documentation identifying real property, computers, cell phones, intellectual property, vehicles, brokerage accounts, bank deposits and all other assets that may be available for execution to satisfy the Judgment entered by the Court....
(b) Documents sufficient to show Zandian's balance sheet for each month for the years 2007 to present;
(c) Documents sufficient to show Zandian's gross revenues for each month for the years 2007 to present;
(d) Documents sufficient to show Zandian's costs and expenses for each month for the years 2007 to present;
(e) All of Zandian's accounting records, computerized electronic and/or printed on paper format for the years 2007 to the present;
(f) All of Zandian's statements, cancelled checks and related banking documents for any bank, brokerage or other financial account at least partially controlled by Zandian, or recorded in the name of Zandian or for Zandian's benefit, for the years 2007 to the present;
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[5] See Order for Debtor Examination at ¶1.
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(g) All of Zandian's checkbooks, checkbook stubs and checkbook entries for the years 2007 to the present;
(h) Documents sufficient to show the means and source of payment of Zandian's current residence and any other residence for the years 2007 to present; and
(i) Documents sufficient to show the means and source of payment of Zandian's counsel in this matter.[6]
As of the date of the Order for Debtor Examination, there had been a total of 85 months in the period referenced as "each month for the years 2007 to present."
II. Argument
A. Reza Zandian is not a resident of
Plaintiffs request for permission to conduct a debtor's examination in this case was based upon NRS 21.270, which authorizes and regulates the procedure.[7] As such, it seems somewhat remarkable that Plaintiff's Motion for Judgment Debtor Examination and to Produce Documents quotes only a portion of the statute.[8] Unfortunately, that that Motion included nothing to alert this Court that only a portion of the controlling statute was included, and that, in fact, the most relevant portion was excluded.
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[6] See Order for Debtor Examination at ¶2(a) — (k).
[7] See Motion for Judgment Debtor Examination and to Produce Documents at 1:24-25 (Dec. 11, 2013).
[8] See Motion for Judgment Debtor Examination
and to Produce Documents at 5:25 - 6:2 (1:24-25 ("Under
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In its entirety, NRS 21.270(1) provides:
1. A judgment creditor, at any time after the judgment is entered, is entitled to an order from the judge of the court requiring the judgment debtor to appear and to answer upon oath or affirmation concerning his or her property, before:
(a) The judge or a master appointed by the judge; or
(b) An attorney representing the judgment creditor, at a time and place specified in the order. No judgment debtor may be required to appear outside the county in which the judgment debtor resides.
(Emphasis added).
The emphasized provision
could not be more clear and explicit. Under anyone's interpretation of the
evidence pertaining to the residence of Reza Zandian,
there is no information indicating that he resides in
As the Order
for Debtor's Examination is contrary to NRS 21.270 in the first place, Mr. Zandian should not be held in contempt for a failure to
comply with the requirements of that order, insofar as it required to
personally present himself in
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[9] To be fair, the fact that the Motion for Judgment Debtor Examination and to Produce Documents was unopposed by then-counsel for Reza Zandian bears a fair share of the responsibility for the oversight. The invalidity of the order subjecting Mr. Zandian to a debtor's examination should have been presented to this Court in the context of an opposition. Nonetheless, the failure to respond does not expand the scope of this Court's lawful authority beyond that which is authorized. In other words, the law is what the law is. And the failure to present an accurate statement of the law in a timely fashion, while regrettable in this instance, does not change the lawful authority -and limitations thereon- of this Court.
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B. Reza Zandian should not be held in contempt for failing to comply with a requirement reducing by half his time to respond to an ordered document production.
Next, Plaintiff complains that Mr. Zandian failed to comply with this Courts Order for Debtor's Examination "by failing to produce the documents one week prior to the debtor's examination. "[10] Once again, Plaintiff takes generous -and unauthorized- liberties with the procedural regulation of supplementary proceedings in aid of judgment execution.
NRCP 69(a) provides:
(a) In general. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the State. In aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.
(Emphasis added).
The emphasized language permits Plaintiff, as the judgment creditor, to utilize the discovery techniques set forth in the Nevada Rules of Civil Procedure. As such, the Order for Debtor's Examination, insofar as it required the production of documents by Reza Zandian, is sound. However, the term "in the manner provided in these rules" is more than an authorization. It is also a limitation. That is, the language authorizes the use of discovery techniques, but requires them to be exercised in accordance with the Nevada Rules of Civil Procedure.
The production of documents is governed by NRCP 34. Under that rule, a party, in this case Reza Zandian, would be allowed 30 days to serve a written response to a
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[10] See Motion at 8:20-21.
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request for the production of documents.[11] Applied in the context of this case, 30 days from service of the Order for Debtor's Examination would have required the document disclosure by February 18, 2014.[12] Of course, Reza Zandian's time for production was drastically reduced from that to February 4, 2014. The result was a requirement that Reza Zandian produce 11 categories of documents, several of which required 85 months of information, within two weeks -half of the time allotted for a "normal" document production.[13]
Of course, this Court has the authority to compel a shorter or allow a longer time than 30 days to produce documents in accordance with NRCP 34.[14] And while Plaintiff may contend that this authority was invoked by the Court in its Order for Debtor's Examination, the contention seems dubious for two reasons. First, Plaintiffs Motion for Judgment Debtor Examination and to Produce Documents includes no discussion supporting a request to shorten the time for production. And, second, there is, in fact, no urgency to limit the time frame for the production of the requested documents. The judgment in this case has existed for quite some time prior to the request for supplementary proceedings. In regard to that judgment, the interests of Plaintiff are protected from fraudulent transfers by Chapter 112 of Nevada Revised Statutes. Other than Plaintiffs yearn to expedite execution -shared by nearly all judgment creditors throughout history- there is no meaningful reason to reduce by half the opportunity for
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[11] See NRCP 34(b) ("The party upon whom the request is served shall serve a written response within 30 days after the service of the request.")
[12] See NRCP 6.
[13] Again, it must be conceded that it would have been far better to present this position in the context of an opposition to the Motion for Judgment Debtor Examination and to Produce Documents. But be that as it may, counsel for Reza Zandian did alert Plaintiffs counsel in advance that it would not be possible to comply with the order's production requirement "due to the short amount of time provided." Exhibit 2 to Motion.
[14] NRCP 34(b) ("A shorter or longer time maybe directed by the court….")
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Reza Zandian to respond to the expansive request set forth in the Order for Debtor's Examination.
These circumstances do not warrant a determination that Reza Zandian is in contempt of this Court or that the sanctions which Plaintiff requests should be imposed. For this reason, this Court should deny the Motion at this time.
III. Conclusion
For these reasons, it is respectfully requested that this Court enter an order denying the Motion.
DATED this 3rd day of March, 2014.
KAEMPFER CROWELL
BY: ______________________
JASON D. WOODBURY
Nevada Bar No. 6870
SEVERIN A. CARLSON
Nevada Bar No. 9373
KAEMPFER CROWELL
Telephone: (775) 884-8300
Facsimile: (775) 882-0257
e-mail: jwoodbury@kcnvlaw.com
scarlson@kcnvlaw.com
Attorneys for Defendant, REZA ZANDIAN
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CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I hereby certify that service of the foregoing OPPOSITION TO MOTION FOR ORDER TO SHOW CAUSE REGARDING CONTEMPT was made this date by depositing a true and correct copy of the document in the United States mail, postage pre-paid at Carson City, Nevada, addressed to:
Matthew D. Francis
Adam P. McMillen
WATSON ROUNDS
Attorneys for Plaintiff Jed Margolin
DATED this 3rd day of March, 2014.
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employee of Kaempfer Crowell
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