Sabaii & Salehi v. Shekarchian

Filed 6/10/08 Sabaii & Salehi v. Shekarchian CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County. Jacqueline A. Connor, Judge. Reversed.

Salehi & Associates and Amir S. Salehi for Appellants.

No appearance for Respondents.

__________________________________

SUMMARY

This is an appeal from an order imposing sanctions against an attorney for his service of defective subpoenas. We reverse.

FACTUAL AND PROCEDURAL SYNOPSIS

According to the record, Renee Sebastian obtained a $500,000 judgment against Ali Reza Shekarchian and then assigned her entitlement to $187,000 of that judgment to her former attorneys Sabaii & Salehi, LLP and Amir S. Salehi. Apparently unable to collect on the judgment against Ali Reza Shekarchian, Salehi then prepared and served (in January 2007) subpoenas for appearance and production of documents on Ali Reza Shekarchian as well as his mother, father and brother (Nahid Shekarchian Sedigh, Reza Shekarchian Ahmadabadi and Mohammed Reza Shekarchian) seeking information to facilitate collection of the judgment against Ali Shekarchian.

Counsel for Shekarchians mother, father and brother (Faryan Andrew Afifi) contacted Salehi regarding the subpoenas, and Salehi and Afifi further communicated by phone and in writing about them. On February 14, Afifi then filed a motion for protective order and for sanctions in the amount of $4,446.25 against plaintiff and her counsel (Salehi), citing Code of Civil Procedure sections 2017.020, 2025.420 and 708.120. (All further statutory references are to the Code of Civil Procedure.) According to Afifis declaration and attached correspondence, he had told Salehi on the phone that Ali Shekarchians father was gravely ill, suffered from Alzheimers and could not submit to a deposition; he also said Ali Shekarchians mother was her husbands caretaker and in no condition to be deposed; and he said the testimony and documents

infringe on privileges, including the marital and the attorney-client privilege.[1] He offered declarations under oath that they have no financial dealings with Ali Shekarchian and are unaware of any responsive documents, but Salehi rejected Afifis suggestion and, Afifi said, invited him to file a motion for protective order and seek sanctions.

According to Salehis declaration and attached correspondence submitted in opposition to the motion for protective order and for sanctions, he told Afifi that Ali Shekarchian has stated that he relies on his parents for support and that Afifis clients had signed declarations under penalty of perjury stat[ing] facts which fly directly against evidence I have from neutral third party [p]rivate [i]nvestigators and [p]rocess [s]ervers so he needed to at least depose Ali Shekarchians mother and brother.

Salehi said Afifi never asserted any defect in the subpoenas pursuant to section 708.120; rather, he insisted on written declarations as the only response and called Salehi a scum bucket when this did not suffice. Had you brought to my attention at any point prior to the filing of your motion the defect of the issuance of the subpoenas, I would have immediately withdrawn them. He advised Afifi: I hereby withdraw all deposition subpoenas for the documents requested and personal appearances of your clients. Citing section 2025.420, subdivision (d), he said: [N]o sanctions are warranted if the Court finds that one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.

Salehi also submitted a declaration from Paul Katz who signed the proofs of service for the subpoenas. According to Katz, Ali Shekarchians mother identified herself to him at her front gate and took all four of the subpoenas from himincluding one for her son, saying she wanted to see the documents. When Katz said he needed to give the documents to the other family members, she said she would deliver them as everyone he was attempting to serve lived there; she would not give the papers back.

After hearing argument on the motion, the trial court adopted its tentative ruling as follows: The motion of non-parties Reza Shekarchian, Nahid Shekarchian and Mohammed Reza Shekarchian for a protective order is GRANTED. The request to quash the deposition subpoenas issued by Mr. Salehi . . . is MOOT because they have been voluntarily withdrawn. However, the Court issues a protective order precluding Assignees Sabaii & Salehi and Amir S. Salehi from issuing any further deposition subpoenas or post-judgment discovery to non-parties Reza Shekarchian, Nahid Shekarchian and Mohammed Reza Shekarchian without first obtaining a Court order. The request for monetary sanctions is GRANTED. Sanctions in the amount of $1,540 are imposed jointly and severally against Sabaii & Salehi, LLP and Amir S. Salehi, payable within 10 days to Reza Shekarchian, Nahid Shekarchian and Mohammed Reza Shekarchian through their counsel of record Faryan Andrew Afifi. Mr. Salehis request for monetary sanctions is DENIED. Moving parties objections and motions to strike portions of the opposition are OVERRULED and DENIED. Moving parties to give notice.

A third person may be ordered to appear for examination upon the judgment creditors applications showing to the courts satisfaction that the third person is in possession or control of property in which the judgment debtor has an interest or is indebted to the debtor for more than $250. (Code of Civil Procedure 708.120.) The judgment creditor may apply ex parte for a court order requiring the third person to appear. The application must include a declaration showing the third person possesses property of the debtor or is indebted to the debtor for more than $250. The declaration may be based upon information and belief (however, it should state the facts upon which the information or belief is founded and their source). (Code of Civil Procedure 708.120(a).)

Mr. Salehi concedes that the deposition subpoenas at issue fail to comply with the procedural requirements set forth above. Therefore, the subpoenas have been withdrawn, no longer requiring the court to quash them. However, there is an issue as to whether these assignees will continue their efforts to examine the Shekarchians in an attempt to enforce their portion of the judgment against Ali Reza Shekarchian. There is also an issue as to whether the moving parties are entitled to sanctions for having to bring this motion.

Mr. Salehi has failed to demonstrate that any of the Shekarchian family members is in possession or control of property in which the judgment debtor has an interest or is indebted to the debtor for more than $250. The only contention by Mr. Salehi is that Ali Reza Shekarchian is currently residing in his parents home. This is not enough to satisfy the burdens set forth in Code of Civil Procedure 708.120. First, Reza Shekarchians health conditions prevent him from providing any information. Second, Nahid and Mohammed Shekarchian have submitted sworn declarations stating that they have no responsive documents, have not received or made loans to defendant, and are not in possession of any of defendants property. In fact, Mrs. Shekarchian states that the defendant does not even live with her and nothing has been provided by Mr. Salehi to substantiate his claim that defendant uses his parents home as his primary residence.

Throughout the correspondence provided by both sides, there is discussion of bringing a motion for protective order. Offers to compromise by the Shekarchians were rejected, necessitating this motion. Therefore, the Court finds that sanctions are warranted in this case against Mr. Salehi and Sabaii & Salehi, LLP. The opposing request for monetary sanctions pursuant to Code of Civil Procedure 128.7 is DENIED. First, there is no substantive basis for such sanctions against the moving parties. Second, Code of Civil Procedure section 128.7 has strict procedural requirements which ha[ve] not been met. . . .  

The Court orders that any intent for deposition subpoenas are to be by Noticed Motion. . . .

Salehi appeals.

DISCUSSION[2]

Citing section 2025.420, Salehi says a party bringing a motion for protective order must comply with the meet and confer requirement of section 2016.040 which states: A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. However, Afifi never raised the deficiency of the subpoenas under section 708.120 until he filed the motion for protective order. Moreover, citing First City Properties, Inc. v. MacAdam (1996) 49 Cal.App.4th 507, he says: A court is required to state the statute upon which sanctions are given[;] otherwise an appellate court cannot be certain the [trial] court did or did not make an error.

The fundamental problem is that the Shekarchians citation to section 2025.420 as authority for the imposition of sanctions under these circumstances was misplaced. (See 2016.070 [This title applies to discovery in aid of enforcement of a money judgment only to the extent provided in Article 1 (commencing with Section 708.010) of Chapter 6 of Title 9 of part 2].) Because the trial courts order imposing sanctions is not supported by a proper statutory basis, the order must be reversed.

DISPOSITION

The sanctions order is reversed. Salehi is to bear his own costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J. ZELON, J.

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[1] There was also a declaration from Afifis mother confirming her husbands condition (with a letter from Edith Flores, M.D., stating he suffered from severe dementia and required 24 hour care). She said she did not know about her sons financial dealings. She acknowledged giving her son pocket money when he needs money to pay basic expenses but said it was simply an emotional act and not an expectation. She said she had not been served with the subpoenas; she said her housekeeper told her they had been left on the doorstep, but she did not want to contest service. In his declaration, Ali Shekarchians brother also denied knowledge of his brothers business dealings, said he had already been deposed in the discovery phase of the case and believed all necessary questions had been asked already.

[2] We received no respondents brief in this matter.