{ Converted to text using OCR. The PDF is the controlling document. The Exhibits are in the PDF. JM}
REC’D & FILED
2015 JUL 10 PM 4:30
SUSAN MERRIWETHER CLERK
BY DEPUTY _______________
Matthew D. Francis (6978)
Adam P. McMillen (10678)
WATSON ROUNDS
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for Plaintiff Jed Margolin
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.: 1
REPLY IN SUPPORT OF MOTION FOR JUDGMENT DEBTOR EXAMINATION AND TO PRODUCE DOCUMENTS AND OPPOSITION TO DEFENDANT REZA ZANDIAN'S MOTION FOR PROTECTIVE ORDER
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I. DISCOVERY OF ZANDIAN'S ASSETS IS PROPER
The purpose of the requested post-judgment discovery is to discover Defendant Reza Zandian's ("Zandian") assets to satisfy the Judgment. Zandian has not been willing to post a supersedeas bond while the appeal process is completed and Zandian has not provided any information about his assets in order to satisfy the Judgment. Also, subsequent to the appeal in this matter, Plaintiff has learned of several instances where Zandian has transferred assets to third-parties in an apparent attempt to place assets out of reach. It is reasonable to believe Zandian has assets which cannot be discovered unless Zandian is compelled by Order of the
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Court to disclose them. The following information demonstrates the appropriateness and reasonableness of the requested discovery.
On March 27, 2015, Zandian resigned
as an officer from Sparks Village LLC and 1-50 Plaza LLC. See Exhibits 1 and 2.
Both companies own valuable real estate. It is unknown if Zandian cashed out of
those businesses or what he has done with his ownership interests. Also, Sean
Fayeghi, who was served with one of the subpoenas Zandian is now asking to be
quashed, is also the registered agent for and an officer of both companies. Mr.
Fayeghi is also listed as the registered agent for
On April 30, 2015, Zandian was
removed as a managing member of Stagecoach Valley LLC. See Exhibit 4. Zandian's
address was listed as being in
Zandian is an active member of
Zandian also seeks to quash the
subpoena to State Agent and Transfer Syndicate, Inc., which is the registered
agent of
Zandian had an interest in a 40 acre property in
Zandian dirtied the titles to all
other real property he owns in
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20, 2014, Zandian signed documents to
dirty the titles to six parcels in
On March 18, 2014, Zandian
similarly dirtied the titles to three parcels in
On March 17, 2014, Zandian
similarly dirtied the title to one parcel in
On May 3 0, 2014, Zandian similarly
dirtied the titles to two parcels in
On March 18, 2014, Zandian
similarly dirtied the title to one parcel in
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[1] Zandian personally appeared before a notary in
[2] Zandian personally appeared before a notary in
[3] Zandian personally appeared before a notary in
[4] Zandian personally appeared before a notary in
[5] Zandian personally appeared before a notary in
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purchased after August 21, 2003 and the purchase documents do not refer to the alleged "financial agreement." See Exhibit 26.
It appears Zandian dirtied the
title to nine (9) other parcels in
The above issues, coupled with Zandian's history of evading any kind of discovery and process in this matter, demonstrate that the requested Order for discovery of Zandian's assets is reasonable and appropriate.
II. LEGAL ARGUMENT
A. Zandian Can Be Made To Appear Before This Court For A Debtor's Examination
Zandian asserts he resides in France and cannot be compelled to appear at a debtor's examination in Carson City, Nevada. See Opposition at 3:15-18. However, Zandian has not provided any proof he resides in France. No utility bills. No billing statements. Nothing.[8]
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[6] These parcels are known as the "Pah Rah" properties,
[7] Zandian personally appeared before a notary in Carson City, Nevada, to sign the document. See Exhibit 30.
[8] Zandian should not be allowed to respond to this reply with regards to the Motion for Debtor's Examination and the requested discovery from Zandian in its response to Plaintiff's opposition to the motion for protective order as the protective order only pertains to the subpoenas addressed to third-parties. Otherwise, Plaintiff requests it be allowed to respond to any further response to this motion.
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Further, the evidence available shows addresses for Zandian in Carson City and that Zandian signs documents in Carson City. See Exhibits 4, 5, 7-9, 13-15, 19, 21-22, 25, 30.
Also, Zandian listed a Las Vegas address on his 2014 Schedule K-1 (Form 1065) for Dayton Plaza LLC, of which he is an active member. See Exhibit 31. The IRS instructions for Form 1065 state in pertinent part as follows:
"Foreign address. If the partner has a foreign address, enter the information in the following order: City or town, state or province, country and ZIP or foreign postal code. Follow the country's practice for entering the postal code. Do not abbreviate the country name."
See Exhibit 32. The IRS instructions further state as follows:
If the partnership's address is outside the United States or its possessions or territories, enter the information on the line for "City or town, state or province, country, and ZIP or foreign postal code" in the following order: city, province or state, and the foreign country. Follow the foreign country's practice in placing the postal code in the address. Do not abbreviate the country name.
If the partnership has changed its address since it last filed a return (including a change to an "in care of' address), check box G(4) for "Address change."
See Exhibit 33. Zandian did not provide his French address to the IRS. If he resided in France, he should have provided any such French address to the IRS. There is no evidence he ever provided an address change indicating he lives in France. There is no evidence he resides in France besides his own self-serving statements.
In short, the evidence indicates Zandian resides and does business throughout Nevada, including Carson City, Nevada. Therefore, Zandian should be compelled to appear for a debtor's examination before this Court.
Moreover, Nevada case law supports this Court ordering Zandian to appear at a debtor's examination before this Court in Carson City even if he were not a resident of Nevada. Pursuant to a motion for debtor's examination, the court in Rausch v. World Series of Golf, Inc., No. 2: 10-CV-00412-KJD, 2012 WL 1517294, at *1 (D. Nev. Apr. 23, 2012) ordered "defendant World Series of Golf, Inc. to appear [ ... for a debtor examination to be
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conducted in accordance with the provisions of NRS 21.270." Id. The Rausch court stated that "[f]ailure to appear may result in sanctions. See NRS 21.270(3)." Id. Before the examination, counsel for the defendant sent a letter to plaintiffs counsel stating he was not aware of any defendant officers that "reside in Clark County or the state of Nevada," and he had not been able to procure a company representative to appear at the debtor's examination. Id. Defense counsel also stated he was providing advance notice so as to "avoid unnecessary costs associated with hiring a court reporter or otherwise preparing for the examination." Id. Plaintiff's counsel then called defense counsel and indicated he was going forward with the examination. Id.
Plaintiff's counsel in the Rausch case "attempted to take the exam of defendant, but neither an agent nor a representative of [the defendant] appeared." Id. "At the judgment debtor exam, plaintiff's counsel called defense counsel to allow defense counsel to make a record." Id. "Defense counsel stated on the record that he was unable to procure a representative to appear at the judgment debtor exam." Id. "Plaintiffs counsel asserted that he intended on seeking sanctions from the court for defendant's failure to appear at the judgment debtor exam." Id.
Pursuant to a motion for contempt sanctions for the defendant not appearing at the debtor's examination, the Rausch court found the defendant "did not attempt to appear or reschedule the judgment debtor exam, and therefore violated the court's order beyond substantial compliance." Id. (citation omitted). The Rausch court recommended a finding of criminal contempt and recommended a $2,000 sanction for defendant's failure to obey the order to appear at the debtor's examination. Id. Further, the Rausch court recommended the District Judge order plaintiff to schedule the judgment debtor exam to occur at the federal courthouse in Las Vegas and order defendant to appear. Id. It was also recommended that if
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defendant did not appear at the second debtor's exam that defendant be sanctioned $500 a day until a representative of defendant appears at the judgment debtor exam. Id.
B. The Documents Sought From Zandian Are Reasonably Calculated To Lead To The Discovery Of Zandian's Assets
Zandian makes a groundless/baseless assertion that Plaintiffs requests for documents from Zandian in aid of execution of the Judgment are overbroad, oppressive, designed to harass and are not likely to lead to the discovery of relevant evidence. Plaintiff, of course, believes the requested documents are reasonable in time and scope and will lead to the discovery of Zandian's assets.
"A judgment creditor can conduct the ordinary methods of discovery in pursuit of a judgment claim. 'In aid of the judgment or execution, the judgment creditor or his 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.” Greene v. Eighth Judicial Dist. Court of Nevada ex rel. Cnty, of Clark, 115 Nev. 391, 396, 990 P.2d 184, 186-87 (1999) (citing NRCP 69).
Zandian argues that requests "a, j and k" are limitless in duration. See Opposition at 4:16. However, request "a" on its face only requests records showing Zandian's current assets as indicated by the language contained therein that states "assets that may be available for execution to satisfy the Judgment..." See Motion at 2:1-5. Request "j" is limited in duration as it requests the source of payment of Zandian's counsel in this matter. See id at 2:24-25. Therefore, this request would be limited at least to the time frame of this matter and is therefore not "limitless." Request "k" is on its face without any time limit and Plaintiff would be willing to agree to limit the request to any settlement agreements by which a party has agreed to pay money to Zandian since the entering of the Judgment or upon which Zandian is currently owed money.
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Zandian next argues that the remainder of the requests seek documents from 2007 to the present and that it would be "highly unlikely" that documents going back to 2007 "will provide information related to Zandian's current assets available to pay the judgment against him or to otherwise aid in the enforcement of the judgment." See Opposition at 4:18-22. However, as shown above, Zandian has recently filed documents with several Nevada counties indicating there is an August 21, 2003 "financial agreement" whereby Zandian allegedly transferred interests in property to others, even though at least in some instances Zandian had not yet owned the property. This alone demonstrates the reasonableness of Plaintiff's requests. Also, Zandian signed the fraudulent assignment documents with the US Patent and Trademark Office in 2007, which actions eventually led to the Judgment. See Complaint, filed 12/11/09, TT 15-16. With Zandian's recent dirtying of titles here in Nevada, it is reasonable to seek discovery of documents going back to 2007 in order to understand any transfers of assets that may have occurred from that time to the present.
C. A Protective Order Prohibiting The Production Requested In The Subpoenas Is Not Proper
“[I]n accordance with Nev. Rev. Stat. 21.320, a 'judge may order any property of the judgment debtor to be applied toward satisfaction of the judgment, whether it is in the possession of the judgment debtor or a third party, as long as it is not exempt from execution."' Quiroz v. Dickerson, No. 3: 1 O-CV-00657-LRH, 2015 WL 321401, at *3 (D. Nev. Jan. 23, 2015) (citing Greene v. Eighth Judicial Dist. Court of Nevada, 115 Nev. 391, 990 P.2d 184, 186 (1999)). Not only is the subpoena power available to a judgment creditor, "a judge may (under circumstances set forth in the statute) order a third party in possession of property of the judgment debtor to appear before the judge or a master to submit to examination regarding such property." Greene, 115 Nev. at 395-96, 990 P.2d at 186-87 (citing NRS 21.300). "In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including
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the judgment debtor, in the manner provided in these rules-." Greene, 115 Nev. at 395-96, 990 P.2d at 186-87 (citing NRCP 69) (emphasis added).
It is undisputed Plaintiff can serve the subpoenas on the subject entities and individuals. Zandian's problem is that Plaintiff is asking for documents from the subject entities and individuals, at all. There really is nothing more to Zandian's argument.
In support of his argument, Zandian states he "in good faith" tried to "resolve this discovery dispute without court action" and cites to Tara Zimmerman's declaration.[9] See Opposition at 6:13-15. The sum total of her declaration regarding her attempt to resolve the matter simply states that she called undersigned counsel and was unable to resolve the dispute. See id at Zimmerman Declaration, Exhibit 5, IT 5-6. The declaration leaves out the fact that Ms. Zimmerman proposed to resolve the discovery dispute by offering to have Zandian produce the records requested in the subpoenas instead of the subpoenaed parties. When the undersigned agreed to such a resolution, Ms. Zimmerman immediately took that resolution off the table and said she had not yet spoken with her client and then went on to say that the parties could not resolve the discovery dispute even though Plaintiff was more than willing to resolve the same.
For the first time in his Opposition, Zandian now adds to his argument that the requested documents are "extremely sensitive." See Opposition at 6:16. However, according to NRCP 26, that is not a basis upon which discovery may be halted. See NRCP 26(b). While "extremely sensitive" documents might appropriately be subject to a protective order, which Plaintiff would have readily agreed to a protective order if the issue would have been brought
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[9] Counsel are attempting to resolve the issue related to the fact that Tara Zimmerman was a law clerk to Judge James Russell at the same time this matter was pending before Judge Russell. To date, the matter has not been resolved and therefore Plaintiff believes it is inappropriate for Ms. Zimmerman to represent Zandian until there has been a resolution of the matter in accordance with the Nevada Rules of Professional Conduct, including Rule 1.11.
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up earlier, the documents should still be produced under the rules of discovery and in aid of execution.
Zandian's assertion that the subpoenas have or will cause any annoyance, oppressiveness, undue burden or undue expense is without merit. Plaintiff is the one who has suffered these things over the years in trying to chase Zandian to the four comers of the earth for simple information related to his assets. To show that this is the case, if Zandian were serious about the arguments he is making in the Opposition, he would have already produced all of the records related to his current assets for the last three years, which he says should be the limit of discovery at this time. See Opposition at 9:12-14.
The subpoenas were sent to people and entities that Zandian has business dealings and business interests with regards to Zandian's assets. It is highly likely the subpoenaed discovery requests will aid in execution of the judgment by providing information about Zandian's current assets. As Plaintiff has not been provided the requested documents by Zandian himself, Plaintiff is left to search for the relevant information through the subpoenas. As stated before, if Zandian provided the requested information, then Plaintiff would gladly withdraw the subpoenas. However, this has not happened and given the difficulty of not getting any discovery responses from Zandian, either before or after the judgment, even when ordered to do so by this Court, Plaintiff must respectfully request that the Court deny Zandian's efforts to thwart discovery in this matter at this time.
Additionally, with regard to the records requested of the subpoenaed parties, Plaintiff is not aware of any rule that requires "concrete evidence of a concealed or fraudulently transferred asset" before the discovery can go forward, as is advocated by Zandian. See Opposition at 9:15-17.
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D. Plaintiff Requests A Hearing On The Motion And Opposition
Given the nature of the opposition and the motion for protective order, Plaintiff respectfully requests a hearing before the Court in order to resolve the current discovery issues as expeditiously as possible.
CONCLUSION
For the reasons stated above, Plaintiff Jed Margolin respectfully requests this Court grant the Motion for Debtor's Examination and deny Defendant Reza Zandian's Motion for Protective Order.
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.
The undersigned also declares under penalty of perjury that the foregoing is true and correct.
Dated this 10th day of July, 2015.
BY:
Matthew 0, 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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