MAHVASH MAZGANI VS HOFFMAN LA BREA LLC ET AL

Tentative Rulings

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Case Number: BC607465 Hearing Date: August 5, 2021 Dept: 48

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[TENTATIVE] ORDER RE MOTION FOR TERMINATING SANCTIONS;\r\nEX PARTE APPLICATION

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Motion For Terminating and Monetary\r\nSanctions

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On June\r\n25,2021, Plaintiff Mahvash Mazgani and Cross-Defendants Nazanin Mazgani, and\r\nNeyaz Mazgani filed a motion for terminating sanctions and monetary sanctions\r\nagainst Kevin Moda and Deborah Bronner seeking $68,777. This is the latest in a long list of\r\nsanctions and discovery motions brought by both sides. Like the Mazganis’ prior motion for an order\r\nto show cause regarding contempt, this motion for sanctions arises from conduct\r\nin Mahvash Mazgani’s bankruptcy case.

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The\r\nMazganis argue that Moda’s attorneys Deborah Bronner and Thomas Sands filed in\r\nthe bankruptcy court action certain documents produced in this action and\r\nmarked as confidential under a protective order issued in this case, and that\r\nBronner revealed confidential information in declarations. (Motion at pp. 5-6.) The Mazganis list six documents filed in the\r\nbankruptcy court in 2019 and 2020, to which they say confidential documents\r\nwere attached. (Motion at pp. 6-8.)

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There\r\nare several problems with this motion. \r\nFirst, the Mazganis did not prove that the documents listed in the\r\nmotion were actually produced under the protective order issued in this case\r\nand that the documents actually contained confidential information. Often parties over-designate documents as\r\nconfidential even though the documents contain no confidential information. For example, the motion’s list of confidential\r\ndocuments includes title documents and letters. \r\n(Motion at p. 7.) Usually title\r\ndocuments contain public information, and it is not obvious what confidential\r\ninformation was in the letters. The\r\nMazganis did not file with their motion the disputed documents (or even ask to\r\nfile them under seal), so it is impossible to determine whether they are in\r\nfact confidential. Nor did the Mazganis\r\nshow that the information in the documents was not otherwise made public in the\r\nbankruptcy proceedings, in which Mahvash Mazgani’s financial situation was at\r\nissue.

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Next,\r\nthe Mazganis skip over the fact that they waited almost two years to seek a\r\nremedy for the filing of the documents in the bankruptcy court. The first of the documents at issue was filed\r\nin the bankruptcy court in October 2019. \r\nThe Mazganis do not explain why they did not ask the bankruptcy court to\r\nstrike the documents from the public files at the time of their filing. The long delay in making this motion, and the lack\r\nof any evidence that the Mazganis took action in the bankruptcy court to\r\nprevent the documents from being used in that court, suggest that the real\r\npurpose of this motion is to delay the trial in this case or create a\r\ndistraction from preparing for trial. As\r\nthe Court has reiterated, it is now time to prepare for trial and to shift away\r\nfrom the innumerable discovery disputes between the parties.

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Further, terminating sanctions in\r\nthis case is not the appropriate remedy for the alleged misconduct in the\r\nbankruptcy court. Assuming all of the\r\ndocuments listed in the motion at pages 7-8 actually contained confidential\r\ninformation, were produced under the protective order in this case, and the\r\ninformation contained the documents was not otherwise made public in the\r\nbankruptcy proceeding, the proper remedy was to immediately seek to have them stricken\r\nor at least filed under seal in the bankruptcy proceeding to maintain their\r\nconfidentiality.

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Nor is an award of the attorney\r\nfees Mahvash Mazgani incurred in the bankruptcy court an appropriate remedy. The Mazganis did not show that this Court can\r\naward as a sanction the attorney fees a party incurs in a case in a federal\r\ncourt. Code of Civil Procedures section\r\n128.5 allows a trial court to order a sanction of attorney fees “incurred by\r\nanother party as a result of actions or tactics, made in bad faith, that are\r\nfrivolous or solely intended to cause unnecessary delay.” The Mazganis contends that the bankruptcy\r\naction was intended to delay this case, and that Moda’s use of the disputed\r\ndocuments in the bankruptcy court resulted in Mahvash Mazgani incurring\r\nattorney fees in the bankruptcy litigation. \r\n(Motion at p. 19.) The Court does\r\nnot have a sufficient factual or legal basis to conclude that the bankruptcy\r\nproceeding was frivolous or solely filed to delay this case. Also, the Mazganis did not prove that if the\r\ndocuments had not been used in the bankruptcy court, she would not have\r\nincurred the fees in the bankruptcy case.

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The motion is DENIED.

Moving party to give notice.

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Ex Parte Application For Orders re Trial\r\nSubpoenas and OSC re Contempt

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On July 30, 2021,\r\nPlaintiff Mahvash Mazgani and Cross-Defendants Nazanin Mazgani, and Neyaz\r\nMazgani an ex parte application for various orders regarding trial subpoenas and\r\nto set an Order to Show Cause regarding contempt against Kevin Moda based on\r\nsubpoenas he sent to financial institutions for the Mazganis’ financial\r\ndocuments. The Court continued the\r\nhearing to August 5, 2021. The Mazganis\r\nfiled a notice of the new hearing date showing that all parties received notice\r\nof the August 5, 2021 date by email on July 30, 2021.

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The Mazganis contend that\r\nModa served a trial subpoena on Bank of America requesting the Mazganis’\r\nfinancial information without serving the subpoena on the Mazganis, and that\r\nModa now has the Mazganis financial documents from Bank of America. Moda argues no notice is required for trial\r\nsubpoenas and does not deny serving a trial subpoena on Bank of America. Generally, a party is not entitled to notice\r\nof a trial subpoena. (Taggart v.\r\nSuper Seer Corp. (1995) 33 Cal.App.4th 1697, 1708 n.8.) However, when the trial subpoena seeks\r\nconsumer records, the rules regarding such records, including the service of a\r\nNotice to Consumer, apply. (Code Civ.\r\nProc., § 1985.3.) In addition, the\r\nmandatory form civil subpoena for the production of documents at trial (Form\r\nSUBP-002) requires the third party to produce the documents to the Court, not\r\nto a party or a party’s attorney. \r\nTherefore, any trial subpoena to Bank of America that required the\r\nproduction of personal financial documents to Moda’s counsel is void. By August 6 at noon, Moda’s counsel Deborah\r\nBronner is to file a declaration attaching a copy of all trial subpoenas served\r\non financial institutions for the trial in this case and stating when the trial\r\nsubpoenas were served and whether the financial institutions produced documents\r\nin response.

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The Mazganis also contend\r\nthat on July 20, 2021, Moda served notices to consumers in connection with\r\nother subpoenas. If these subpoenas were\r\nfor discovery, discovery is closed. The\r\ntrial date is August 9, 2021. Any\r\ncontinuance of the trial date will NOT result in re-opening of discovery. Therefore, any notices to consumers served on\r\nJuly 20, 2021 and any subpoena in connection with those notices are too late. No financial institution is to produce\r\ndocuments in connection with such subpoenas. \r\nNo party is to serve any further discovery. On the other hand, if these subpoenas were for\r\ntrial, Moda’s counsel Deborah Bronner is to include them in the declaration\r\ndescribed above.

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The ex parte application\r\nis continued to August 9, 2021 at 8:30 a.m.

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Moving party to give\r\nnotice.

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Parties who intend to\r\nsubmit on this tentative must send an email to the Court at\r\nSMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY\r\nencouraged to appear remotely.

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Case Number: BC607465 Hearing Date: July 12, 2021 Dept: 48

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[TENTATIVE] ORDER RE MOTIONS IN LIMINE

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Moda MIL Nos. 1, 2, 13

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Moda\r\nseeks to exclude evidence, reference or argument that he has been arrested or\r\nconvicted of a crime (wire fraud) because the conviction was 19 years ago and\r\nthe arrest is not relevant. Moda argues\r\nthat because the crime was so long ago it is more prejudicial than probative\r\nunder section 352 and not relevant. Moda\r\nseeks to exclude evidence, reference or argument that Moda gave Mahvash Mazgani\r\nmoney to avoid a criminal restitution order on the ground that there is no\r\nevidence of such an order and it is more prejudicial than probative. And he seeks to exclude evidence of tax liens,\r\narguing the Mazganis have no foundation to testify about tax liens and they are\r\nmore prejudicial than probative.

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The\r\nMazganis argue the 2002 fraud conviction is relevant because Moda alleges\r\nMahvash Mazgani induced him to entrust his money to her, when in fact Moda\r\napproached Mazgani to hold his money because due to the conviction, he had been\r\nordered to pay $391,875 in restitution and had multiple tax liens against\r\nhim.

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In\r\nreply, Moda contends he pled guilty to $5,000 in wire fraud and paid all his\r\nrestitution obligations.

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The\r\nMazganis did not file a copy of the restitution order. Moda states it does not exist. Likewise, they did not file copies of the tax\r\nliens or show their foundation for testifying about tax liens. If the restitution order and tax liens exist,\r\nthe Mazganis are to file a copies of them. \r\nIf they do not exist, the motions will be granted. The hearing on these motions is continued.

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Moda MIL No. 3

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Moda\r\nseeks to exclude evidence, reference or argument that he is on the vexatious\r\nlitigant list as irrelevant and more prejudicial than probative. There was no opposition. The motion is GRANTED.

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Moda MIL No. 4

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Moda\r\nseeks to exclude any evidence not exchanged or produced in response to\r\ndiscovery requests. The motion does not\r\nidentify any particular document or witness Moda expects the Mazganis to use\r\nthat was not produced in discovery. If a\r\nparty attempts to introduce a document that was requested in discovery and not\r\nproduced, Moda should object to that exhibit on the exhibit list or object at\r\nthe time the party attempts to use the document. Moda must be prepared to show he requested\r\nthe document during discovery. If a\r\nparty seeks to call a witness who was not previously identified during\r\ndiscovery, Moda should object on the witness list and be prepared to show the\r\ndiscovery requesting the identity of the witness. At this point, the motion is DENIED.

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Moda MIL No. 5

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Moda\r\nseeks to exclude evidence, reference or argument about the return of cash to\r\nModa by the Mazganis. In discovery,\r\nMahvash Mazgani identified four people as having information about her giving\r\ncash to Moda: (1) herself, (2) Moda, (3)\r\nKasey Diba, and (4) Kamelia Jalilvand. \r\nModa subpoenaed Jalilvand for a deposition, but Moda contends Mazgani\r\nasserted the attorney-client privilege at the deposition which prevented\r\nJalilvand from testifying. Moda states\r\nthat on July 16, 2019, the Court upheld that assertion of privilege.

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Mazgani\r\nargues that Moda had the ability to ask her about the topic of the return of\r\ncash and never asked Jalilvand a question about the return of cash.

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The\r\nmotion does not attach an excerpt from the Jalilvand deposition where she is\r\nasked about the return of cash and is then instructed not to answer. Also, based on the discovery response,\r\nMazgani and Kasey Diba have information on the topic. Moda could have asked them about the return\r\nof cash. The motion is DENIED.

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Moda MIL No. 6

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Moda\r\nseeks to exclude evidence, reference or argument relating to damages evidence\r\nnot produced three days before Mahvash Mazgani’s deposition as previously\r\nordered. According to Moda, on June 15,\r\n2021, Mahvash Mazgani produced only documents that have been previously\r\nproduced in 2017. Then on June 17, 2021,\r\nshe produced 840 documents one day before her deposition. In opposition, Mazgani argues that the Court\r\nactually ordered her to produce the documents on the day of the\r\ndeposition. Neither party attached the\r\norders.

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This\r\nmotion seeks the exclusion of all the documents produced on June 17, 2021. But the motion does not state whether those\r\ndocuments were produced for the first time on June 17, 2021, or had been\r\npreviously produced in the case. Nor did\r\nModa supply the order requiring documents to be produced three days before the\r\ndeposition. Therefore, this motion is\r\nDENEIED.

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Moda MIL No. 7

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Moda seeks to exclude ad\r\nhominem attacks. Apparently in\r\ndepositions, one or more of the Mazganis called Moda “dog beater,” “rapist,”\r\nand “sexual deviant,” and accused him of sexual assault. No party should use ad hominem attacks at\r\ntrial. The motion is GRANTED as to the\r\nuse of “dog beater,” “rapist,” and “sexual deviant,” and accusations of sexual\r\nassault. Otherwise, the motion is too\r\nvague and is DENIED.

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Moda MIL No. 8

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Moda\r\nseeks to exclude evidence “tending to impact emotional bias.” This motion is\r\ntoo vague and is therefore DENIED. Moda\r\nalso seeks to exclude evidence and reference to his national origin as\r\nirrelevant and prejudicial. That part of\r\nthe motion is GRANTED unless a party shows that national origin is relevant to\r\nthe issues in dispute.

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Moda MIL No. 9

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Moda seeks to exclude\r\nevidence, reference or argument that he has used another name as not relevant\r\nand more prejudicial than probative.

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The Mazganis argue that\r\none of the disputed issues is how Mahvash Mazgani came to have possession of\r\nModa’s money and valuable possessions. \r\nHe alleges she induced him to hand over money and possessions so she\r\ncould use his assets for her personal benefit, but she contends that Moda gave\r\nhis money to Mazgani to put into her bank account to avoid paying creditors,\r\nand that his use of multiple names reflects that motivation.

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Mahvash Mazgani can\r\nsubmit evidence that Moda was trying to avoid creditors and therefore has\r\nunclean hands without evidence about multiple names. This trial already has many complicated\r\nissues and a convoluted history that the jury will find difficult to\r\nfollow. The evidence of multiple names\r\nis likely to waste time, confuse the jury and be more prejudicial than\r\nprobative. The motion is GRANTED.

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Moda MIL No. 10

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Moda\r\nseeks to preclude the Mazganis from attacking his character. This motion is too vague and is therefore\r\nDENIED.

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Moda MIL No. 11

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Moda\r\nseeks to exclude of “in forma paupris.” \r\nThis motion is too vague and is therefore DENIED.

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Moda MIL No. 12

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Moda\r\nseeks to exclude evidence, reference or argument that Mahvash Mazgani is in\r\nbankruptcy. Mazgani makes a similar\r\nmotion. The parties should have stipulated\r\nto exclude this fact. The motion is\r\nGRANTED.

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Moda MIL No. 14

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Moda\r\nseeks to exclude evidence, reference or argument that he damaged Mahvash Mazgani’s\r\npersonal property because there is no such evidence. Mazgani argues that she testified at her\r\ndeposition that she watched him smash her car with a crowbar. The motion is DENIED.

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Moda MIL No. 15

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Moda seeks to exclude\r\nevidence, reference or argument that Moda has multiple social security numbers\r\nas more prejudicial than probative.

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Mahvash Mazgani argues\r\nthat Moda’s First Amended Cross-Complaint alleges Mazgani obtained a life\r\ninsurance policy on behalf of Moda without his consent using his money that\r\nMazgani was holding. (FACC, ¶ 83.) Mazgani argues that, in fact, Moda obtained\r\nthat life insurance policy for himself using a fake social security number.

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Moda contends this never\r\nhappened.

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Mazgani is to file the\r\nevidence that Moda obtained the life insurance policy for himself using a fake\r\nsocial security number. If she has no\r\nsuch evidence, the motion will be granted. \r\nThe hearing on this motion is continued.

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Moda MIL No. 16

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Moda\r\nseeks to exclude evidence, reference or argument about jewelry Moda reported as\r\nstolen to an insurance company as irrelevant and more prejudicial than\r\nprobative.

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Mahvash\r\nMazgani argues that in the FACC, Moda alleges he gave her jewelry to hold but\r\nshe then refused to return the jewelry. \r\nMazgani contends that Moda asked her to hold the jewelry so that he\r\ncould make a fraudulent insurance claim reporting his jewelry stolen. She contends she returned the jewelry to him\r\nin 2017.

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If\r\nModa filed an insurance claim reporting the jewelry stolen, that evidence may\r\nbe relevant to his allegation that Mazgani refused to return the jewelry and to\r\nMazgani’s defense against Moda’s allegations. \r\nBut no party has filed the allegedly false insurance claims. The Mazganis are to file evidence of the\r\nallegedly false insurance claims. If\r\nthey do not have such evidence, this motion will be granted. The hearing on this motion is continued.

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Mazgani MIL No. 1

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Mahvash\r\nMazgani seeks to exclude evidence, reference or argument about her bankruptcy\r\nas not relevant and more prejudicial than probative. Moda makes a similar motion. The parties should have stipulated to exclude\r\nthis fact. The motion is GRANTED

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Mazgani MIL No. 2

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Mahvash\r\nMazgani seeks to exclude evidence, reference or argument about two lawsuits\r\ninvolving her corporation as not relevant and more prejudicial than\r\nprobative. In one case the plaintiff\r\ncontends Mahvash Mazgani committed assault and battery. In the other case, the plaintiff alleges Mazgani\r\nconspired to defraud senior citizens.

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Moda\r\nargues that his accounting expert needs to detail all of the Mazganis’\r\nexpenditures, which includes money used to settle one of those cases. However, Moda’s expert can refer to money\r\nused to settle the Khosroabadi v. Mazgani litigation without discussing\r\nthe subject matter or allegations of that case.

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Moda\r\nalso contends that the Mazganis will argue that they obtained money from other\r\nsources, not Moda. That is not a reason\r\nto raise the allegations in and subject matter of the other two cases.

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Moda\r\nargues that testimony in the other cases will be used as impeachment in this\r\ncase. If that occurs, Moda may seek to\r\nuse impeachment evidence.

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This\r\ncase is already complicated enough without delving into the allegations and\r\nevidence in two other litigations that are not related to this case. Evidence of the two lawsuits involving Mazgani’s\r\ncorporation will be time-consuming, confusing, unduly prejudicial, and not\r\nrelevant. Therefore, the motion is\r\nGRANTED in part. Moda’s expert can refer\r\nto money used to settle the Khosroabadi v. Mazgani litigation without\r\ndiscussing the subject matter or allegations of that case.

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Moving party to give\r\nnotice.

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Parties who intend to\r\nsubmit on this tentative must send an email to the Court at\r\nSMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY\r\nencouraged to appear remotely.

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Case Number: BC607465 Hearing Date: July 9, 2021 Dept: 48

[TENTATIVE] ORDER RE MOTION FOR OSC RE CONTEMPT

On April 30,2021, Plaintiff Mahvash Mazgani and Cross-Defendants Nazanin Mazgani, and Neyaz Mazgani filed a motion for an order to show cause why Beverly Hills Lenders, LLC should not be held in contempt for violating a protective order. There was no opposition.

The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court. (Code Civ. Proc., § 2023.030, subd. (e).) “ ‘Punishment for contempt “can only rest upon [a] clear, intentional violation of a specific, narrowly drawn order.” ’ [Citation.]” (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 82.)

On September 16, 2020, a bankruptcy court issued an order that Beverly Hill Lenders was to comply with a protective order issued in this Court. Specifically, on September 16, 2020, the bankruptcy court ordered, “With respect to the examination and the document production, Movant shall abide by the Protective Order Governing Disclosure and Use of Confidential Information . . . as if Movant was an expressly designated party to that order.”

The Mazganis argue that in a separate case (Case No. BC657191) Beverly Hills Lenders’ parent company publicly-filed confidential documents subject to the protective order, which Beverly Hills Lender had obtained in the bankruptcy court. The Mazganis point to a declaration filed in Case No. BC657191 dated February 21, 2021, stating “the documents attached are copies of the originals I have obtained from the United States Bankruptcy Court docket and from the deposition obtained by Beverly Hills Lenders LLC in the bankruptcy court proceeding.” The Mazganis argue that this statement in the declaration proves that Beverly Hills Lenders violated the protective order.

The declaration states, as quoted above, that the attached documents were obtained from the bankruptcy court docket and from a deposition. Usually documents obtained from a court docket are publicly available unless they are filed under seal. The Mazganis did not show that the documents from the bankruptcy court docket are not publicly available. They did not identify which documents attached to the declaration were obtained from the bankruptcy court docket and which were designated as confidential under the protective order.

The declaration states that Exhibits C through M are excerpts from the deposition transcript of Mahvash Mazgani. The bankruptcy court order required Beverly Hills Lenders to abide by the protective order. For depositions, the protective order requires a designating party to “identify on the record, before the close of the deposition, all ‘Confidential’ Testimony, by specifying all portions of the Testimony that qualify as ‘Confidential’” or to “designate the entirety of the Testimony at the deposition as ‘Confidential’ (before the deposition is concluded).” The Mazganis did not show whether they designated any specific part or the entirety of the deposition transcript as confidential on the record during the deposition as required under the protective order.

In sum, the Mazganis did not show Beverly Hills Lenders intentionally violated the protective order. If it did publicly file confidential documents in Case No. BC657191 and use documents in that case that it was precluded from using, the Mazganis can take remedial measures in Case No. BC657191 such as seeking to strike or seal the improperly-filed documents.

The motion is DENIED.

[TENTATIVE] ORDER RE EX PARTE APPLICATION FOR\nDEPOSITION OF KEVIN MODA

\n\nOn June 30, 2021, the Court\nrequested three-page briefs on the question of the Mazganis’ compliance with\nthe September 12, 2017 order, as the August 21, 2019 order stated that the\nparties should meet and confer about whether Nazanin Mazgani had served\nsupplemental responses pursuant to the September 12, 2017 order. The Mazganis filed a declaration on July 2,\n2021 attaching Second Supplemental Responses to Interrogatory Nos. 21, 24, 25,\n29, 31, and 34 without objections and with a May 31, 2019 proof of service. Moda filed a declaration on July 7, 2021 arguing\nabout other issues and contending that the responses in the May 31, 2019 Second\nSupplemental Responses are “made-up recent.” \nModa does not dispute that the Second Supplemental Responses were served\non May 31, 2019. The Mazganis showed\nthey complied.

\n\nOn June 30, 2021, the\nCourt ordered the parties to file a joint report with an explanation why they\ncannot agree to a stipulation about verifications for the Mazganis’ discovery\nresponses. Because the parties cannot\nagree on a stipulation, the Court orders each of the Mazgani parties to re-serve\neach of their discovery responses with stipulations stating: “I hereby verify that I have read the\nforegoing [INSERT NAME OF DISCOVERY RESPONSE] and know its contents. I am a party to this action. The matters stated in the foregoing document were\ntrue of my own knowledge as of the date of the discovery response, except as to\nthose matter which are stated on information and belief, and as to those\nmatters, I believed them to be true as of the date of the discovery response. Executed on [INSERT DATE] at [INSERT LOCATION]. I declare under penalty of perjury under the\nlaws of the State of California that the foregoing is true and correct. [INSERT DATE AND SIGNATURE].” The discovery responses are not to be\nchanged; only the verification quoted here is to be attached. The Mazganis are to re-serve each discovery\nresponse with the attached verification by email by July 16, 2021.

\n\nSubject to each of the Mazgani\nparties re-serving their discovery responses with the attached verification\nquoted above by July 16, 2021, the ex parte application for the deposition of\nKevin Moda is GRANTED. The deposition is\nto be completed by July 30, 2021.

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Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

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Case Number: BC607465    Hearing Date: June 2, 2021    Dept: 48

[TENTATIVE] ORDER RE MOTION FOR ISSUE AND EVIDENTIARY SANCTION

On May 12, 2021, Defendant and Cross-Complainant Kevin Moda filed a motion for issue and evidence sanctions. This is the second motion for issue and evidence sanctions and the third of six discovery motions Moda has scheduled in a two-week periods. This motion again argues about proper verifications, an issue covered by the first of this series of discovery motions and already ruled on. This motion also goes through the long history of discovery disputes in this case, repeating what multiple discovery motions previously argued.

In this motion, Moda asks the Court to “establish that $827,242.72 was taken out of the accounts that Mr. Modas’ money was in under the guise of Mahvash Mazgani taking the money, when in fact it was Neyaz Mazgani.” (Motion at p. 8.) This motion has the same problems as the previous motion for evidentiary and issue sanctions denied on Mary 28, 2021.

First, this motion relitigates old discovery disputes. On April 28, 2021, the Court denied a motion for terminating sanctions based on the grounds that the Mazganis had not complied with a long list of discovery orders. In that motion, Moda argued the Mazganis had violated a laundry list of discovery orders, the same orders at issue in this motion.

Second, Moda argues that, “As a result of not providing responses to discovery, the Mazganis have tombed [sic] the amount that Mr. Moda can prove with the evidence that has been to be $827,242.72 in check.” (Motion at p. 8.) This sentence is not comprehensible. It seems to be stating that as a result of the Mazganis not serving discovery responses, Moda cannot prove something about the $827,242.72 amount. The motion does not identify the specific discovery requests that Moda claims the Mazganis did not answer and that he claims justify the sanctions requested. “[T]h sanction chosen should not provide a windfall to the other party, putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193.) Therefore, “sweeping evidentiary conclusions that were the heart of” the other side’s case are not proper if they “provide a windfall to [the moving parties] relieving them of their burden of proving their theory of liability.” (Id. at p. 1194.) Because Moda refers generally to past discovery, he did not show that if the Mazganis had answered any particular specific discovery request, he would have obtained the information that he is now requesting via sanctions.

This is especially confusing because later in the motion, Moda states, “Where, as here, the court has not issued an order compelling a response or further response to an interrogatory (and where such an order has not been violated), the party moving for the exclusion of evidence has the burden of establishing the answer given by the responding party was willfully false, i.e., intentionally not true.”) [sic]” (Motion at p. 9.) Moda seems to be arguing here that the Mazganis did not violate a previous court order, but he does not identify the specific interrogatory to which they did not respond.

Third, the motion argues, “Mahvash Mazgani is dishonest.” (Motion at p. 9.) But the motion does not specify what she has been dishonest about. In any event, that vague contention is not grounds for discovery sanctions.

Fourth, the motion argues the Mazganis “have also deceptively told this Court that they were in compliance when they clearly were/are not.” (Motion at p. 11.) Again, Moda does not specify what statements were deceptive, and he does not cite legal grounds for discovery sanctions based on this vague contention.

The motion is DENIED.

Mazgani’s request for sanctions is GRANTED. Moda had no substantial justification for bringing this motion. It is now time to focus on preparing this very old case for trial. Sanctions are awarded against Moda in the amount of $1,500.00 to be paid within 20 days.

The parties are again ordered to serve all documents by email except those that must be personally served.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC607465    Hearing Date: May 28, 2021    Dept: 48

[TENATIVE] ORDER RE MOTION FOR ISSUE AND EVIDENTIARY SANCTION

On May 10, 2021, Defendant and Cross-Complainant Kevin Moda filed this motion for issue and evidence sanctions. This is the second of six discovery motions Moda has scheduled in a two-week periods (not including the other seven discovery motions for which the parties have reserved hearings in the next five weeks). This motion relitigates old discovery issues. In this most recent motion, Moda argues that the Mazganis did not comply with 22 discovery orders from January 17, 2017 to July 19, 2019. (Motion at p. 3.) Most of the motion rehashes the history of discovery disputes. Moda then asks for an order establishing “that Mahvash Mazgani did not return $735,000 in cash that she represents in her discovery responses as having been given to Mr. Moda.” (Motion at p. 7.)

This motion covers the same ground as previous motions. For example, on April 28, 2021, the Court denied Moda’s previous motion for discovery sanctions, which sought terminating sanctions based on the same discovery orders at issue in this motion (the January 26, 2018 and April 9, 2018 orders). As the Court noted in the April 28, 2021 order, Moda had previously filed a similar motion in 2019, which was denied on August 28, 2019. This motion retreads the same grounds and is denied for a third time.

Next, if the motion is contending that the Mazganis did not respond to certain discovery (the motion is vague and confusing about this), it does not identify the specific discovery requests that Moda claims the Mazganis did not answer and that he claims justify the sanctions requested. “[T]h sanction chosen should not provide a windfall to the other party, putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193.) Therefore, “sweeping evidentiary conclusions that were the heart of” the other side’s case are not proper if they “provide a windfall to [the moving parties] relieving them of their burden of proving their theory of liability.” (Id. at p. 1194.) Because Moda refers generally to past discovery, he did not show that if the Mazganis had answered any particular specific discovery request, he would have obtained the information that he is now requesting via sanctions.

Third, the motion acknowledges that in fact Mazgani did provide discovery responses but then argues that the responses are inconsistent with other discovery responses, and concludes that therefore Mazgani is dishonest. (Motion at p. 8.) Apparently she served a response in February 2017 saying she gave Moda $27,283.77 in September 2014, and then she served a response in October 2018 saying she gave Moda $735,000.00 in December 2016. (Motion at p. 8.) Moda contends these responses are inconsistent and that therefore Mazgani is dishonest. (Motion at p. 8.) Inconsistent discovery responses is not a basis for evidentiary or issue sanctions. The case cited by Moda, Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, involved an order to bar a witness from testifying at trial where the witness was deliberately not named in response to an interrogatory seeking the names of witnesses. (Id. at p . 273.) That is far from an order establishing certain facts as a sanction because a party gave inconsistent discovery responses. It is for the trier of fact at trial to decide the credibility of a witness, not for a court on a discovery motion to decide that a party is dishonest based on discovery responses that the other side thinks are inconsistent.

Mazgani’s request for sanctions is GRANTED. This is, at a minimum, the third motion seeking sanctions based on the same old discovery responses. Moda had no substantial justification for bringing this motion yet again. It is now time to focus on preparing this very old case for trial. Sanctions are awarded against Moda in the amount of $1,500.00 to be paid within 20 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC607465    Hearing Date: May 27, 2021    Dept: 48

[TENATIVE] ORDER RE MOTION TO DEEM RFAS ADMITTED

Defendant and Cross-Complainant Kevin Moda filed a motion to deem RFAs served on Mahvash Mazgani admitted. Counsel for Mazgani states Moda did not serve the motion by email, as the Court has ordered multiple times, and that the personal service was late. The proof of service shows service at law firm addresses. The Court orders once again that all documents are to be served by email to counsel unless the law requires personal service. Due to the pandemic many attorneys are not working at their offices. In addition, there had been problems in this case with timely service. Therefore, service must be by email to reduce the numbers of disputes about proper service.

The Court overrules Moda’s objection to paragraph 3 of the Newell declaration.

This is the latest of many motions relitigating discovery from more than three years ago. On March 22, 2018, the Court denied a previous motion on these RFAs. The gist of the most recent motion is that the RFA responses are not verified. Counsel for Mazgani explains that she served proper verifications to the discovery responses on about May 20, 2019. Therefore, Moda has had verifications to the discovery for two years. The motion is DENIED.

Mazgani’s request for sanctions is GRANTED. This dispute should have been resolved among the parties. If Moda had difficulty matching the proper verifications with the discovery responses, he should have accepted Mazgani’s offer for a chart to match the verifications with the responses or the stipulation that the responses have all been verified. Instead, Moda filed yet another discovery motion, one of six discovery motions he has scheduled for hearing in the next two weeks. This motion is a misuse of the discovery process, a distraction, and waste of resources when the parties should be preparing for the upcoming trial. In addition the parties have reserved hearing dates for another seven discovery motions in the next five weeks. There is no justification in this case for thirteen discovery motions in five weeks. Reserving so many hearing dates deprives parties in other cases of the ability to have their motions heard in a timely fashion. Accordingly, sanctions are awarded against Moda in the amount of $1,500.00 to be paid within 20 days.

The June 8, 2021 IDC is off-calendar.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC607465    Hearing Date: May 19, 2021    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR RELIEF FROM DEFAULT

On October 23, 2020, the Court granted a motion by the counsel for Defendants Hoffman La Brea, LLC and JKDM, LLC to be relieved as counsel because they were suspended companies, among other grounds. The Court set a hearing on an Order to Show Cause Re: Failure to Retain New Counsel for January 7, 2021, stating that if those two defendants did not obtain new counsel before the hearing date, the Court might strike their answer and place them in default. By January 7, 2021, the two LLCs had not shown they had new counsel and had not shown good cause for failing to obtain new counsel. The Court continued the OSC to January 28, 2021 to give them additional time to obtain new counsel. The Court stated that by January 28, 2021, the LLCs need to retain counsel, and that if they had not retained new counsel by that date, the LLCs’ answers would be stricken and they would be put into default.

On January 28, 2021, counsel for Defendant Kevin Moda stated that he would be representing the two LLCs and would file a substitution of counsel form that day. The Court ordered the LLCs to file the substitution of counsel forms by January 29, 2021, and stated that if the forms were not filed by January 29, 2021, then on February 2, 2021, the Court would strike the answers and place the LLCs in default. No substitution of counsel form was filed, so on February 2, 2021, the Court ordered the answers of Hoffman La Brea, LLC and JKDM, LLC stricken and placed them in default.

On April 22, 2021, counsel for Hoffman La Brea, LLC and JKDM, LLC filed this motion to vacate the order striking their answers and placing them in default. The Court may relieve a party or counsel from a judgment resulting from mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) The application for relief must be made within a reasonable time, not to exceed six months, after the judgment. (Ibid.) “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citation.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (Elston).)

Defendants timely filed this motion less than three months after the entry of default. Defendants’ counsel declares that they filed and served the substitution of attorney form on January 28, 2021 at 8:25 p.m. (Sands Decl. ¶ 6.) On February 2, 2021 at 1:08 p.m., after the Court entered the order striking Defendants’ answers, the Clerk of the Court rejected the form because “Only One Named Party per Substitution of Attorney.” (Id. at ¶¶ 10-11.) Defendants filed new substitution of attorney forms on March 22, 2021.

The Court finds that Defendants have promptly sought relief and provided evidence of their mistake or excusable neglect, and Plaintiff has not shown prejudice if the default is set aside. (See Elston, supra, 38 Cal.3d at p. 233.)

However, Defendants have not shown that they are no longer suspended corporations. “[A] suspended corporation may not prosecute or defend an action in a California court.” (Timberline, Inc. v. Jaisinghani (1997) 54 Cal. App. 4th 1361, 1365.) “However, if the corporation’s status only comes to light during litigation, the normal practice is for the trial court to permit a short continuance to enable the suspended corporation to effect reinstatement (by paying back taxes, interest and penalties) to defend itself in court.” (Id. at p. 1366.)

According to the declarations filed with former counsel’s September 18, 2019 and September 28, 2020 motions be relieved as counsel, Defendants’ suspended status has been known since at least September 2019. At the hearing, defense counsel should be prepared to provide evidence of the corporations’ status and whether they have been reinstated. If the corporations are still suspended, defense counsel is to describes the steps being taken to reinstate the corporations, explain why those steps were not taken earlier, and state whether a continuance of this motion is warranted so that the corporations can be reinstated. Given the upcoming trial date and the fact that the corporations have been suspended for more than 1.5 years, any continuance will be very short.

Moving party to give notice.

Case Number: BC607465    Hearing Date: April 28, 2021    Dept: 48

[TENTATIVE] ORDER RE MOTION FOR TERMINATING SANCTIONS

Defendant and Cross-Complainant Kevin Moda moves for terminating sanctions against Plaintiffs and Cross-Defendants Mahvash Mazgani, Nzanin Mazgani, and Neyaz Mazgani for failing to respond to discovery requests and not complying with discovery orders. Moda argues that the Mazganis failed to comply with discovery orders dated January 17, 2017, July 25, 2017, August 15, 2017, August 29, 2017, September 5, 2017, September 12, 2017, September 26, 2017, November 16, 2017, January 26, 2018, March 22, 2018, March 23, 2018, April 9, 2018, August 24, 2018, April 10, 2019, May 13, 2019, and May 17, 2019.

This is not the first time Moda has filed a motion for terminating sanctions. On June 7, 2019, Moda filed with the discovery referee a motion for terminating sanctions arguing that the Mazganis had failed to copy with discovery orders dated January 17, 2017, July 25, 2017, August 29, 2017, September 5, 2017, September 9, 2017, September 12, 2017, September 26, 2017, November 16, 2017, March 22, 2018, March 23, 2018, August 24, 2018, May 8, 2019 and May 17, 2019. The discovery referee issued long reports and recommendations on the motion. On August 28, 2019, the Court denied that motion for terminating sanctions.

Now, nearly two years later, Moda makes another motion asserting violations of a nearly identical list of old discovery orders. The Court again denies the motion because Moda previously made this motion targeting the same discovery orders unsuccessfully. Moda did not show any basis for reconsideration of the Court’s earlier decision or even that the Court can reconsider that earlier decision at this time. In addition, even assuming the merits of the motion are subject to reconsideration, the Court denies the motion for the following reasons:

January 17, 2017 order: Moda argues that after this order, Mazgani served responses that were incomplete and evasive, had objections, and did not have proper verifications. Moda does not identify the specific responses that were incomplete and evasive or the problem with the verification. In any event, this is not grounds for terminating sanctions.

July 25, 2017 order: Moda argues the responses served after this order had pages of unwarranted objections and an improper preliminary statement. Moda does not explain why the objections were unwarranted. Objections and a preliminary statement are not grounds for terminating sanctions.

August 15, 2017 order: Moda argues the responses contained an improper preliminary statement and general objections. That is not grounds for terminating sanctions.

August 29, 2017 order: Moda argues Mazgani served the supplemental responses very late. That is not grounds for terminating sanctions.

September 5, 2017 order: Moda argues Mazgani failed to serve a supplemental response to Request for Production No. 9 and No. 10. Mazgani contends she served supplemental responses to Nos. 9 and 10 and referred to the Bates numbers of previously-produced documents. Moda does not contest that in his reply. Moda has not proven Mazgani failed to serve supplemental responses or the documents requested in Nos. 9 and 10. Therefore the request for terminating sanctions based on a failure to response to Nos. 9 and 10 is denied.

September 12, 2017 order: Moda argues Mazgani served the supplemental responses very late. That is not grounds for terminating sanctions. Moda states the verification is improper but does not explain what is improper about it. The motion is denied.

September 26, 2017 order: Moda argues the verification is defective and the objections are frivolous. If Moda believed the objections were baseless, he should have met and conferred and filed a motion to compel further responses. It is now too late to file such a motion. Moda does not explain how the verification is defective or which objections are frivolous. The motion is denied on this ground.

November 16, 2017 order: Moda argues Mazgani’s supplemental responses are deficient and do not comply with the November 16, 2017 order. This order was already the subject of the August 28, 2019 order denying the earlier motion. If Mazgani’s supplemental responses were deficient, Moda should have raised the issue much earlier and not waited more than three years. Moda did not show Mazgani intentionally failed to serve proper supplemental responses. The motion for terminating sanctions is denied.

January 26, 2018 order: Moda argues Mazgani’s supplemental responses are deficient and do not comply with the January 26, 2018 order. If Mazgani’s supplemental responses were deficient, Moda should have raised the issue much earlier and not waited three years. Moda did not show Mazgani intentionally failed to serve proper supplemental responses. The motion for terminating sanctions is denied.

March 22, 2018 order: Moda argues Mazganis’ counsel did not respond to meet and confer efforts and that some undefined supplemental responses were deficient. This argument is vague and confusing. Moda did not provede a sufficient evidentiary basis for terminating sanctions. The motion is denied.

March 23, 2018 order: Moda argues Mazgani did not produce documents relating to certain accounts. In Moda’s separate statement, he argues the supplemental responses contained improper objections and preliminary statement. That is not grounds for terminating sanctions. He argues the verifications were improper but does not explain how. He argues the responsive documents were incomplete but does not identify the incomplete and missing documents. The motion is denied for these reasons.

April 9, 2018 order: Moda simply quotes this order and does not identify any specific deficient discovery response.

August 24, 2018 order: Moda argues Mazgani did not serve responses to Special Interrogatory No. 1 or Request for Production No. 5. Mazgani states she provided supplemental response on September 4, 2018. Therefore this is no basis for terminating sanctions.

April 10, 2019 order: Moda simply quotes this order and does not identify any specific deficient discovery response.

May 13, 2019 order: Moda argues that as of May 13, 2019, the Court had found Mazganis not incompliance with discovery order. Moda argues they are still not compliant, but does not submit any evidence showing any specific violation of the May 13, 2019 order.

May 17, 2019 order: Moda argues Mazgani served very late supplemental responses. That is not grounds for terminating sanctions.

The parties on all sides have over-litigated this case and are using litigation to conduct an intra-family war, thereby wasting judicial resources. Moda has not shown that the Mazganis have prevented him from obtaining discovery that he needs for trial. It is now time to prepare for trial instead of filing a duplicative discovery motion.  The motion is DENIED. 

The Court GRANTS the Mazganis' request for monetary sanctions. Moda did not provide any legal basis for bringing another motion for terminating sanctions based on the alleged violations of the same orders as his earlier motion for terminating sanctions, without at least establishing some new conduct that justified this most recent motion. Sanctions in the amount of $3,000.00 are awarded against Moda, to be paid within 20 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC607465    Hearing Date: December 08, 2020    Dept: 48

[TENTATIVE] ORDER RE MOTION TO QUASH

Cross-Defendant Mahvash Mazgani moves to quash a subpoena to Wells Fargo Bank for her bank records. Cross-Defendant contends Cross-Complainant Kevin Moda did not serve a Notice to Consumer before serving the subpoena. Cross-Defendant’s attorney states in his declaration that he was not served with the subpoena and first learned about it on October 16, 2020 from an attorney at the bank. He then asked Cross-Complainant’s attorney to serve the notice and reserve the subpoena.

Cross-Complainant contends he served the notice on Cross-Defendant’s attorney by mail and attaches the proof of service showing a date of mailing of September 29, 2020.

The Court GRANTS the motion in part as follows: Wells Fargo Bank is not to produce response documents until further order of the Court or a jointly signed statement from the parties. If Cross-Defendant objects to the requested documents being produced on grounds other than lack of service, the parties are to meet and confer on the phone by December 11, 2020 about the objections. If they do not resolve the objections, they are to attend an IDC on December 18, 2020 at 11 a.m. If the matter is not resolved at the IDC, Cross-Defendant is to file and serve a motion to quash by December 25, 2020.

All documents in this case are to be served by email to counsel in addition to any service by mail, except if the law requires personal service.

The request for sanctions is denied.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC607465    Hearing Date: November 17, 2020    Dept: 48

[TENATIVE] ORDER RE MOTION FOR LEAVE TO FILE SECOND AMENDED CROSS-COMPLAINT

Plaintiffs filed this case against defendant Kevin Moda and others on January 19, 2016. On May 30, 2017 Kevin Moda (“Cross-Complainant”) filed a cross-complaint against Plaintiffs. On October 16, 2017, Cross-Complainant filed a first amended cross-complaint (“FACC”) against Plaintiffs. On October 21, 2020, Cross-Complainant filed a motion for leave to file a second amended cross-complaint (“SACC”).

“A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.” (Code Civ. Proc. § 428.50, subd. (a).) “Any other cross-complaint maybe filed at any time before the court has set a date for trial.” (Code Civ. Proc. § 428.50, subd. (b).) Otherwise, a party shall obtain leave of court, and leave may be granted in the interest of justice at any time during the course of the action. (Code Civ. Proc. § 428.50, subd. (c).) The new pleading cannot allege facts inconsistent with the prior allegations. (Smyth v. Berman (2019) 31 Cal.App.5th 183, 196.) A court may disregard inconsistent allegations. (State of California v CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.) Leave to amend may be denied when there is no reasonable possibility that the plaintiff can amend the pleading to allege the necessary facts to state a valid cause of action. (Aroa Marketing, Inc. v. Hartford Ins. Co. of Midwest (2011) 198 Cal.App.4th 781, 789.)

When a party waits many months to seek leave to amend and offers no excuse for the failure, leave to amend may be denied. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486; Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649.) A court will be more critical of proposed amendments “ ‘offered after long unexplained delay or on the eve of trial (citations), or where there is a lack of diligence, or there is prejudice to the other party (citations).’ [Citation.]” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) “There is a platoon of authority to the effect that a long unexcused delay is sufficient to uphold a trial judge’s decision to deny the opportunity to amend pleadings, particularly where the new amendment would interject a new issue which requires further discovery.” (Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692.)

Cross-Complainant states he seeks “to add a single cause of action for reformation of the MMFT to name Cross-Complaint [sic] both a beneficiary as well as a Trustee of the MMFT.” (Motion at p. 2.) Cross-Complainant states the motion is made based on information that came to light in the bankruptcy proceedings. (Ibid.) The proposed SACC would add a thirteenth cause of action pursuant to Probate Code section 17200 and additional remedies available under Probate Code section 16420.

As an initial matter, sections 17200 and 16420 allow a trustee or beneficiary to commence proceedings. Under section 16420, subdivision (a), “a beneficiary or a cotrustee of the trust may commence a proceeding.” Under section 17200, subdivision (a), “a trustee or beneficiary of a trust may petition the court.” Cross-Complainant has not alleged facts showing he is a trustee or a beneficiary.

The proposed SACC alleges Mahvash Mazgani is the trustee. (SACC ¶ 190.) The trust documents attached to the FACC and SACC identify Mahvash Mazgani as both the trustee and trustor. (FACC, Ex. A; SACC, Ex. A.) The FACC and SACC allege Mahvash Mazgani falsely represented to Cross-Complainant that he was the beneficiary of the trust. (FACC ¶¶ 35, 37; see also SACC ¶¶ 34, 36 .) If that representation was false, that means that Cross-Complainant was not the beneficiary. The proposed SACC alleges, “Pursuant to Probate Code § 15210 Mr. Moda is the sole genuine line beneficiary and grantor of the Massachusetts property residing and titled sole to MMFT.” (SACC ¶ 188.) It is unclear what this sentence means, but section 15210 does not identify or create beneficiaries. Section 15210 merely states that a trust relating to real property may be recorded. Therefore, the SACC does not allege facts establishing that Mazgani is the trustee or beneficiary having standing under section 17200 or section 16420. If Cross-Complainant is ultimately determined to be a beneficiary of the trust, he can then seek to exercise his rights under sections 17200 and 16420 in the probate court.

Second, the proposed amendments do not add material new allegations. The new cause of action in the proposed SACC alleges that Plaintiff Mahvash Mazgani “withheld the name of the trust in which moneys of Mr. Moda were deposited.” (SACC¶ 185.) Cross-Complainant claims he is “entitled to ownership and profits and recovery of any losses” because Mahvash Mazgani “represented that Mr. Moda would be the sole beneficial beneficiary of the trusts that she had established by the name of them Mazgani Family Trust.” (SACC¶ 186.) Plaintiffs “did not deposit all of the money in one particular segregated account but instead co-mingled it with their petty amounts that they had and paid the mortgage of the Massachusetts property off 15 years earlier than when it was due, and have since 2106 paid nearly $1.5 million in attorney’s fees to obstruct the ability of Mr. Moda in getting access to his money and property when that 1,500,00 (estimate) is also Mr. Moda’s money and traceable as his.” (SACC¶ 187.) Cross-Defendant alleges Plaintiffs “engaged in suppression and concealment of the title to the Massachusetts property” and created the Wesson Trust “in order to purportedly transfer the Massachusetts property when in reality the trust that had transferred the Massachusetts property had no interest in the Massachusetts property to transfer. (SACC ¶ 180, 191.)

The gist of these allegations is not new. For example, the previous version of the pleading alleged that Mahvash Mazgani had falsely represented that Cross-Complainant was the beneficiary of the trust. (FACC ¶ 35.) The previous version asked for an award of the proceeds of the trust. (FACC at p. 41.) The previous version alleged Mahvash Mazgani did not deposit Moda’s money as she said she would and used the money for other purposes. (See, e.g., FACC ¶¶ 30, 35, 77, 78.) It alleged the Massachusetts property was transferred to the Wesson Trust to hinder, delay and defraud Cross-Complainant. (FACC ¶¶ 172, 175-178.) If Cross-Complainant believes the factual allegations support claims and remedies under sections 16420 and 17200, he could have alleged those claims and remedies in his earlier cross-complaints.

Likewise, as the Court already noted in previous orders on Cross-Complainant’s previous motions, Cross-Complainant has long had the trust documents supposedly showing a sham transfer (Motion at pp. 5-6) and attached those documents to briefs filed in past years. They are not new evidence discovered in the bankruptcy court.

Third, the motion states that Cross-Complainant seeks to add a cause of action for reformation to be named as a beneficiary. Section 17200 does not include a provision allowing the naming of a beneficiary. Section 17200, subdivision (b)(19) refers to “Reforming . . . compliance with the governing instrument of an organization pursuant to Section 16105.” That is the only reference to reformation in section 17200. Section 16105 concerns a proceeding under the federal Tax Reform Act of 1969, which this clearly is not.

In sum, the evidence Cross-Complainant argues he just learned during the bankruptcy proceeding either is not new evidence or is evidence concerning allegations already existing in the earlier cross-complaints. There is no right to amend pleadings simply to add new evidence discovered during the course of litigation that support existing allegations (if that were allowed, amended pleadings would never end and the case would never be at issue). If the evidence from the bankruptcy proceedings unveils Plaintiffs’ “grand scheme” as Cross-Complainant contends (Motion at p. 2), Cross-Complainant can use that evidence to prove the claims in his FACC (assuming the evidence is admissible).

Plaintiffs claim they would need to take additional discovery if the amendments were allowed. This case is almost five years old and had been the subject of intense litigation, discovery, and motion practice. The case would have gone to trial a year ago but for Mazgani’s bankruptcy proceedings and the pandemic. Allowing the amendment and reopening the pleadings would prejudice Plaintiffs by expanding the litigation and discovery at this late date.

Therefore, the motion is DENIED.

The moving party is to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC607465    Hearing Date: November 06, 2020    Dept: 48

[TENTATIVE] MOTION FOR RECONSIDERATION

On October 15, 2020, Cross-Complainant Kevin Moda filed a motion for reconsideration of an August 27, 2019 order rescinding an order of reference to a discovery referee. However, Code of Civil Procedure section 1008 requires a motion for reconsideration to be made within 10 days after service upon the party of written notice of entry of the order. The August 27, 2019 order was made more than a year ago. The Court mailed written notice of the August 27, 2019 order to counsel on August 27, 2019. Therefore, Cross-Complainant had until September 11, 2019 to bring this motion. The motion is too late and therefore is DENIED.

Moving party is to give notice.

Case Number: BC607465    Hearing Date: November 05, 2020    Dept: 48

[TENTATIVE] ORDER RE MOTION FOR RECONSIDERATION

On October 14, 2020, Cross-Complainant Kevin Moda filed a motion to vacate an order of July 31, 2018 and adopted tentative ruling of June 25, 2018, granting in part and denying a motion for summary judgment or in the alternative for summary adjudication of “(1) Nazanin Mazgani and Neyaz Mazgani as individuals and trustees of the Wesson Trust, as a void order.”

As an initial matter, it is unclear what order is at issue. There is a June 25, 2018 order granting summary adjudication on cause of action five for quiet title and cause of action six for declaratory relief, as well as a signed August 17, 2018 order on that grant of summary adjudication. In those orders, the Court ruled Plaintiffs were entitled to quiet title in their favor as to the Massachusetts property. These June 25 and August 17, 2018 orders appear to be the subject of Cross-Complainant’s motion to vacate, which argues Plaintiffs “perjuriously obtained an order in their favor concerning the Massachusetts property.” (Motion at p. 4.)

Cross-Complainant argues the orders should be vacated because the Court lacked jurisdiction to make them, making the summary adjudication void. This is the same argument the Court addressed in its October 23, 2020 order. As the Court stated in the October 23, 2020 order: “Moda also argues the August 17, 2018 order is void because the trust dated March 19, 2007 never held the Property and because the Property was never transferred from the trust dated April 17, 2007. Moda does not explain why he did not make this argument at the time of the August 17, 2018 summary adjudication decision. Moda bases the argument on a trust transfer deed recorded on May 14, 2007 and a grant deed recorded on February 29, 2016. (Bronner Decl., Exs. 2, 4.) The parties referenced these same two recorded documents in the summary adjudication papers leading to the August 17, 2018 order. (See, e.g., Moda’s April 3, 2018 Opposition to Plaintiff’s Separate Statement of Undisputed Material Facts 62, 63 [referring to “quitclaim deed which was then recorded on May 14, 2007” and “a grant deed recorded on February 29, 2016”].) Thus, Moda knew about the two recorded documents when he filed his opposition in 2018.”

The Court will not vacate an order from more than two years ago based on documents Cross-Complainant cited in his 2018 opposition papers. Cross-Complainant could have made this argument two and half years ago when he opposed the motion for summary adjudication. It is too late to make this argument now.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC607465    Hearing Date: October 23, 2020    Dept: 48

[TENATIVE] ORDER RE MOTION TO BE RELIEVED; MOTION TO EXPUNGE LIS PENDENS; MOTION TO DISMISS

Motion to be Relieved

Lyle R. Mink seeks to be relieved as counsel for Defendants Hoffman La Brea, LLC and JKDM, LLC on the grounds that they are suspended corporations, Kevin Moda has failed to take the steps to remove their suspension, and Moda is suing Mink for malpractice creating a conflict. The original motion was filed on September 18, 2019 but continued for various reasons. On September 28, 2020,Mink filed a motion to revive the original motion to be relieved.

Kevin Moda opposed the original motion and new motion, arguing that Mink did not do much of anything on this case, had not returned a deposit, and did not serve the proper agent for service of process. Mink points out that Kevin Moda is the sole member of the LLCs. Also, Moda signed the verification on the September 13, 2016 answer on behalf of Hoffman La Brea, LLC and JKDM, LLC. Therefore, service to Moda was sufficient. A motion to be relieved is not the proper place to litigate a fee dispute.

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) There is a conflict between Kevin Moda, the sole member of the LLCs, and Lyle Mink. There is no current trial date in this case and therefore no prejudice. The motion to be relieved is GRANTED and effective upon Mink (1) filing a completely filled out Form MC-053 for the Court to sign and (2) filing a proof of service showing service of this order and the signed Form MC-0053 on Kevin Moda for Defendants Hoffman La Brea, LLC and JKDM, LLC and all parties who have appeared.

“[A] corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney.” (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101.) Therefore, an Order to Show Cause Re: Failure to Retain New Counsel is scheduled for January 7, 2021 at 8:30 a.m. in Dept. 48. If Defendants Hoffman La Brea, LLC and JKDM, LLC do not obtain new counsel before that date, the Court may strike their answer and place them in default.

Moving party to give notice.

Motion to Expunge Lis Pendens

On August 17, 2018, the Court ordered title to the property located at 10950 Massachusetts Avenue (“Property”) quieted and determined that Cross-Complainant Kevin Moda has no right, title, estate, lien or other interest in the Property. Thereafter, the property was transferred to Plaintiff Mahvash Mazgani (“Plaintiff”). On March 12, 2020, Moda recorded a Notice of Continued/Continuum of Pendency of Action on the Property. On September 30, 2020, Plaintiff filed a motion to expunge the March 12, 2020 lis pendens on the property. (The proposed order also contains language about expunging the October 17, 2017 notice of pendency of action, but the notice of motion did not mention that earlier notice.)

Under Code of Civil Procedure section 405.30, “At any time after notice of pendency of action has been recorded, any party . . . may apply to the court in which the action is pending to expunge the notice.” “[T]he court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probably validity of the real property claim.” (Code Civ. Proc. § 405.32.) The claimant has the burden of proof under section 405.32. (Code Civ. Proc. § 405.30.)

Plaintiff argues that the August 17, 2018 order has the force of a final judgment under Code of Civil Procedure section 1060 and is binding and conclusive under Code of Civil Procedure section 764.030, subdivision (a). That section states that in a quiet title action, the judgment “is binding and conclusive on . . . All persons known and unknown who were parties to the action and who have any claim to the property, whether present or future, vested or contingent, legal or equitable, several or undivided.” Therefore, Plaintiff contends Moda cannot show any interest in the Property.

Moda filed a 36-page opposition four days late and failed to email serve the opposition documents. The page limit for an opposition brief is 15 pages. The Court will not consider the 21 pages after page 15. Moda argues that on May 13, 2019, the prior judge ordered that Plaintiff could not engage in further proceedings due to discovery violations. However, the May 13, 2019 order “stays the taking of Moda’s deposition until the Mazganis present evidence to the Court that they have complied with all discovery orders whether the orders re compelling responses or production of genuine documents.” The order does not stay all proceedings or prevent Plaintiff from engaging in litigation other than Moda’s deposition.

Moda also argues the August 17, 2018 order is void because the trust dated March 19, 2007 never held the Property and because the Property was never transferred from the trust dated April 17, 2007. Moda does not explain why he did not make this argument at the time of the August 17, 2018 summary adjudication decision. Moda bases the argument on a trust transfer deed recorded on May 14, 2007 and a grant deed recorded on February 29, 2016. (Bronner Decl., Exs. 2, 4.) The parties referenced these same two recorded documents in the summary adjudication papers leading to the August 17, 2018 order. (See, e.g., Moda’s April 3, 2018 Opposition to Plaintiff’s Separate Statement of Undisputed Material Facts 62, 63 [referring to “quitclaim deed which was then recorded on May 14, 2007” and “a grant deed recorded on February 29, 2016”].) Thus, Moda knew about the two recorded documents when he filed his opposition in 2018.

Moda argues that Plaintiff is a narcissist and violated the rent stabilization ordinance, but that has no bearing on title to the Property. Moda objects to the June 24, 2020 transfer from the Wesson Trust to Neyaz Mazgani and Nazanin individually and then to Plaintiff, arguing that these were not actual transfers. Moda does not explain how any of the facts surrounding the June 24, 2020 transfers would give him an interest in the Property to support a lis pendens.

The August 17, 2018 order granting Plaintiff’s motion for summary adjudication stated regarding the Property, “the Court ORDERS, DECLARES, AND DECREES that Neyaz Mazgani and Nazanin Magani, as trustees of the Wesson Trust, are the sole owners of the Massachusetts Property, and title to the Massachusetts Property is hereby QUIETED in Neyaz Mazgani and Nazanin Mazgani, as trustees of the Wesson Trust as of May 10, 2016. The Court further ORDERS, DECLARES, AND DECREES that Kevin Moda possesses no right, title, estate, lien or other interest in the Massachusetts Property.” Moda has not shown that since the August 17, 2018 order, he had obtained any interest in the Property or has any real property claim to the Property that is probably valid.

The motion is GRANTED and the Notice of Continued Pendency of Action recorded on March 12, 2020 as Instrument No. 20200295147 is expunged. Plaintiff is to prepare an order.

Plaintiff requests sanctions pursuant to Code of Civil Procedure section 405.38, which requires a court to award reasonable attorney fees to a party prevailing on a motion to expunge unless the court finds that the other party acted with substantial justification or other circumstances make the imposition unjust. Here, Moda made this proceeding more expensive than it should have been by filing late the 36-page opposition containing much irrelevant commentary. Moda did not have substantial justification for opposing the motion. Therefore, the request for sanctions is GRANTED, and sanctions in the amount of $5,060.00 to be paid within 20 days of the date of this order.

The moving party is to give notice.

Motion to Dismiss

On September 17, 2020, Cross-Complainant Kevin Moda filed a motion to dismiss Neyaz Mazgani, Nazanin Mazgani and Mahvash Mazgani (individually and in their capacity as trustees) (collectively “Plaintiffs”) as plaintiffs in consolidated Case No. BC622117. Moda argues that Plaintiffs did not have standing to sue Moda when they filed their complaint to quiet title on May 31, 2016. Moda argues that the Wesson Trust does not have any interest in the property because the Mahvash Mazgani Family Trust dated March 19, 2007 had no interest in the property when it granted the property to the Wesson Trust. Instead, Moda asserts, the Mahvash Mazani Family Trust dated April 17, 2007 had the interest in the property. This assertion is based on a declaration by Moda’s attorney that “Mahvash Mazgani Family Trust Dated March 19, 2007, is a trust that has never had any interest in the Massachusetts Property” (Bronner Decl. ¶ 5) and recorded grant deeds. Counsel’s statement is a legal conclusion and not based on the personal knowledge of Bronner.

Plaintiffs argue that no Mahvash Mazgani Family Trust dated March 19, 2007 has ever existed and that the grant deed mistakenly referred to March 19, 2007 when the correct date of the trust was April 17, 2007. Plaintiffs contend the grant deed can be reformed.

This dispute cannot be decided on a motion to dismiss. In addition, on August 17, 2018, the Court ordered that Moda has no right, title, estate, lien or other interest in the property. Therefore, the motion is DENIED.

The moving party is to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC607465    Hearing Date: July 30, 2020    Dept: 48

[TENATIVE] ORDER RE CLAIM OF EXEMPTION

On January 18, 2019, the Court issued an order compelling the deposition of non-party Davood Ahmadnia and sanctioning him $2,150.00. The Court issued a writ of execution on December 2, 2019. With additional costs and interest, the total amount on the writ of execution against Ahmadnia was $3,855.82 plus daily interest of $1.04.

Apparently in early March 2020, Ahmadnia filed a claim of exemption. No claim of exemption appears in the Court’s docket, and the Court does not have a copy of the claim of exemption. On March 3, 2020, Defendant Kevin Moda filed an objection to the claim of exemption and obtained a hearing date on the claim of exemption. The hearing date was continued to July 30, 2020.

On July 22, 2020, Plaintiff filed a notice of removal of this action and the consolidated case BC622117 to bankruptcy court.

When a state court action is removed to bankruptcy court, the state court loses jurisdiction and cannot act unless and until the bankruptcy court remands the action. (Fed. R. Bank. Proc. 9027, subd. (c); In re Princess Louise Corp. (Bank. Ct. C.D. Cal. 1987) 77 B.R. 766, 771.) When the entire case is removed, as happened here, “the Los Angeles County Superior Court [is] completely ousted of jurisdiction with respect to the case that was pending before it, and there is no case as to which it may proceed.” (Ibid.)

Accordingly, the Court cannot proceed with the hearing on the claim of exemption at this time. The hearing date is therefore vacated. If the case is remanded, the bankruptcy stay lifted, or this Court otherwise obtains jurisdiction, Defendant may set the a new date for the hearing.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.