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1 ERIC C. MCALLISTER, ESQ., SBN 252567
ecm@millermorton.com
2 LUKE P. TWOMEY, ESQ., SBN 317901
lpt@millermorton.com
3 MILLER, MORTON, CAILLAT & NEVIS, LLP
2001 Gateway Place, Suite 220W
4 San Jose, California 95110
Telephone: (408) 292-1765
5 Facsimile: (408) 436-8272
6 Attorneys for Plaintiff
Nemat Maleksalehi
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA CRUZ
10
11 NEMAT MALEKSALEHI, Case No.: 18CV02004
12 Plaintiff, DECLARATION OF ERIC C.
MCALLISTER IN SUPPORT OF IN
13 vs. SUPPORT OF PLAINTIFF NEMAT
MALEKSALEHI’S EX PARTE
14 SHAHRAM TABATABAI, an individual; APPLICATION FOR AN ORDER
JEANNE TURNER TABATABAI, an CORRECTING A CLERICAL ERROR,
15 individual; and DOES 1 through 10, inclusive AND FOR AN ORDER SUBSTITUTING
SHAHRAM TABATABAI, ASSIGNEE, AS
16 Defendants. PLAINTIFF IN SUBSTITUTION OF
PLAINTIFF NEMAT MALEKSALEHI
17 PURSUANT TO THE STIPULATION
18 Date: May 9, 2022
Time: 1:00 p.m.
19 AND RELATED CROSS-ACTION. Dept: 10
Before: Hon. Paul M. Marigonda
20
21 I, ERIC C. MCALLISTER, declare:
22 I am an attorney at law licensed to practice before this Court and am a partner in the law firm
MILLER, MORTON, CAILLAT & NEVIS, LLP
2001 Gateway Place, Suite 220W
23 of Miller, Morton, Caillat & Nevis, LLP, attorneys of record for Plaintiff Nemat Maleksalehi
Telephone: (408) 292-1765
San Jose, California 95110
24 (“Malek”) in the above-entitled action, and I have personal knowledge of the facts stated herein and
25 if called as a witness, will be able to testify competently to such facts, except as to those alleged on
26 information and belief, and as to those facts, I believe them to be true.
27 1. Malek filed his initial Complaint on July 10, 2018, naming Shahram Tabatabai
28 (“Tabatabai”) and Jeanne Turner Tabatabai as defendants.
1
DECLARATION OF ERIC C. MCALLISTER IN SUPPORT OF EX PARTE APPLICATION
1 2. Malek and Tabatabai reached a settlement of the dispute between them on March 1,
2 2022. The terms of the Settlement Agreement include an assignment and transfer of Malek’s claims
3 against Turner in the action.
4 3. Malek moved for an order substituting Tabatabai as a Plaintiff, in the place of Malek,
5 for all purposes pursuant to the assignment provisions in the Settlement Agreement.
6 4. Prior to the hearing on Malek’s motion, Malek, Tabatabai and Defendant Jeanne
7 Turner Tabatabai (“Turner”) entered into a stipulation entitled “Stipulation to Substitute Shahram
8 Tabatabai for Plaintiff Maleksalehi”, wherein Turner withdrew her Opposition to the pending motion,
9 conditioned on certain agreements between counsel for addressing the substitution and assignment
10 of Plaintiff’s claims in the remainder of the action. The stipulation explicitly states, “Turner
11 withdraws her Opposition to the pending motion, and consents to the substitution, subject to the
12 conditions stated” in the Stipulation. A true and correct copy of the Stipulation is attached hereto as
13 Exhibit A.
14 5. Malek filed the Stipulation on April 1, 2022 with a Proposed Order.
15 6. Based on information and belief, Turner also filed the Stipulation as a standalone
16 filing on or about April 1, 2022.
17 7. The court held a predisposition hearing on the motion, among others, on April 4, 2022,
18 Hon. Timothy Volkmann presiding.
19 8. Based on information and belief, Malek’s filing was not processed by the April 4th
20 hearing, as it had not yet shown up on the online case portal, nor had Hon. Timothy Volkmann seen
21 a copy yet.
22 9. However, Malek informed the court of the existence and filing of the Stipulation, and
MILLER, MORTON, CAILLAT & NEVIS, LLP
2001 Gateway Place, Suite 220W
23 argued the now unopposed motion. Hon. Timothy Volkmann, after hearing the arguments of counsel,
Telephone: (408) 292-1765
San Jose, California 95110
24 granted the (now-stipulated) motion and stated that he would was sign the stipulation and order when
25 it was received.
26 10. The minute order for the hearing, however, misstates the proceeding with respect to
27 Plaintiff’s motion for leave to substitute Plaintiff. Specifically, the minute order states, “Motion for
28 leave to Substitute Plaintiff was withdrawn by moving party.”
2
DECLARATION OF ERIC C. MCALLISTER IN SUPPORT OF EX PARTE APPLICATION
1 11. Plaintiff did not withdraw his motion at the hearing. To the contrary, counsel for
2 Plaintiff, Tabatabai and Turner all stipulated to the granting of the motion, and the arguments of
3 Lindow in opposition to the motion at the hearing were rejected in favor of granting the motion.
4 12. On April 12, I was received a minute order stating that the motion had been
5 withdrawn.
6 13. My office promptly made efforts to correct the error, including multiple phone calls
7 to the clerk’s office and a letter to the clerk.
8 14. If Malek cannot withdraw from this matter immediately he will suffer irreparable
9 harm in the form of harassment and undue burden by continuing to incur fees and being required to
10 appear in the action after his motion was granted.
11 15. Similarly, Tabatabai will suffer irreparable harm by the preclusion of his ability to
12 adequately pursue his assigned claims.
13 16. On Thursday, May 5, 2022, pursuant to California Rule of Court 3.1203, I timely
14 notified, via email, Tanzeel Hak and Lesley Harris, counsel for Shahram Tabatabai and Jeanne Turner
15 Tabatabai, respectively, and Robert Lindow, in pro per, of my intent to submit an Ex Parte
16 Application for an Order Correcting a Clerical Error and for an Order Substituting Shahram
17 Tabatabai, Assignee, as Plaintiff in Substitution of Plaintiff Nemat Maleksalehi Pursuant to the
18 Stipulation.
19 17. The ex parte application will be unopposed by Tabatabai and Turner.
20 18. It is expected that Lindow will once again oppose the motion, but as the Court already
21 knows, Lindow (a vexatious litigant) has no standing to object to the motion – as Malek has not sued
22 Lindow, and Lindow’s cross-claims against Malek have been dismissed via anti-SLAPP.
MILLER, MORTON, CAILLAT & NEVIS, LLP
2001 Gateway Place, Suite 220W
23 I declare under penalty of perjury under the laws of the State of California that the foregoing
Telephone: (408) 292-1765
San Jose, California 95110
24 is true and correct and that this Declaration was executed this 6th day of May 2022, at San Jose,
25 California.
26
__________________________________
27 ERIC C. MCALLISTER
893336_1
28
3
DECLARATION OF ERIC C. MCALLISTER IN SUPPORT OF EX PARTE APPLICATION
EXHIBIT A
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1 ERIC C. MCALLISTER, ESQ., SBN 252567 ecm@millermorton.com 2 LUKE P. TWOMEY, ESQ., SBN 317901 lpt@millermorton.com 3 MILLER, MORTON, CAILLAT & NEVIS, LLP 2001 Gateway Place, Suite 220W 4 San Jose, California 95110 Telephone: (408) 292-1765 5 Facsimile: (408) 436-8272 6 Attorneys for Plaintiff Nemat Maleksalehi 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CRUZ 10 11 NEMAT MALEKSALEHI, Case No.: 18CV02004 12 Plaintiff, DECLARATION OF ERIC C. MCALLISTER IN SUPPORT OF IN 13 vs. SUPPORT OF PLAINTIFF NEMAT MALEKSALEHI’S EX PARTE 14 SHAHRAM TABATABAI, an individual; APPLICATION FOR AN ORDER JEANNE TURNER TABATABAI, an CORRECTING A CLERICAL ERROR, 15 individual; and DOES 1 through 10, inclusive AND FOR AN ORDER SUBSTITUTING SHAHRAM TABATABAI, ASSIGNEE, AS 16 Defendants. PLAINTIFF IN SUBSTITUTION OF PLAINTIFF NEMAT MALEKSALEHI 17 PURSUANT TO THE STIPULATION 18 Date: May 9, 2022 Time: 1:00 p.m. 19 AND RELATED CROSS-ACTION. Dept: 10 Before: Hon. Paul M. Marigonda 20 21 I, ERIC C. MCALLISTER, declare: 22 I am an attorney at law licensed to practice before this Court and am a partner in the law firm MILLER, MORTON, CAILLAT & NEVIS, LLP 2001 Gateway Place, Suite 220W 23 of Miller, Morton, Caillat & Nevis, LLP, attorneys of record for Plaintiff Nemat Maleksalehi Telephone: (408) 292-1765 San Jose, California 95110 24 (“Malek”) in the above-entitled action, and I have personal knowledge of the facts stated herein and 25 if called as a witness, will be able to testify competently to such facts, except as to those alleged on 26 information and belief, and as to those facts, I believe them to be true. 27 1. Malek filed his initial Complaint on July 10, 2018, naming Shahram Tabatabai 28 (“Tabatabai”) and Jeanne Turner Tabatabai as defendants. 1 DECLARATION OF ERIC C. MCALLISTER IN SUPPORT OF EX PARTE APPLICATION 1 2. Malek and Tabatabai reached a settlement of the dispute between them on March 1, 2 2022. The terms of the Settlement Agreement include an assignment and transfer of Malek’s claims 3 against Turner in the action. 4 3. Malek moved for an order substituting Tabatabai as a Plaintiff, in the place of Malek, 5 for all purposes pursuant to the assignment provisions in the Settlement Agreement. 6 4. Prior to the hearing on Malek’s motion, Malek, Tabatabai and Defendant Jeanne 7 Turner Tabatabai (“Turner”) entered into a stipulation entitled “Stipulation to Substitute Shahram 8 Tabatabai for Plaintiff Maleksalehi”, wherein Turner withdrew her Opposition to the pending motion, 9 conditioned on certain agreements between counsel for addressing the substitution and assignment 10 of Plaintiff’s claims in the remainder of the action. The stipulation explicitly states, “Turner 11 withdraws her Opposition to the pending motion, and consents to the substitution, subject to the 12 conditions stated” in the Stipulation. A true and correct copy of the Stipulation is attached hereto as 13 Exhibit A. 14 5. Malek filed the Stipulation on April 1, 2022 with a Proposed Order. 15 6. Based on information and belief, Turner also filed the Stipulation as a standalone 16 filing on or about April 1, 2022. 17 7. The court held a predisposition hearing on the motion, among others, on April 4, 2022, 18 Hon. Timothy Volkmann presiding. 19 8. Based on information and belief, Malek’s filing was not processed by the April 4th 20 hearing, as it had not yet shown up on the online case portal, nor had Hon. Timothy Volkmann seen 21 a copy yet. 22 9. However, Malek informed the court of the existence and filing of the Stipulation, and MILLER, MORTON, CAILLAT & NEVIS, LLP 2001 Gateway Place, Suite 220W 23 argued the now unopposed motion. Hon. Timothy Volkmann, after hearing the arguments of counsel, Telephone: (408) 292-1765 San Jose, California 95110 24 granted the (now-stipulated) motion and stated that he would was sign the stipulation and order when 25 it was received. 26 10. The minute order for the hearing, however, misstates the proceeding with respect to 27 Plaintiff’s motion for leave to substitute Plaintiff. Specifically, the minute order states, “Motion for 28 leave to Substitute Plaintiff was withdrawn by moving party.” 2 DECLARATION OF ERIC C. MCALLISTER IN SUPPORT OF EX PARTE APPLICATION 1 11. Plaintiff did not withdraw his motion at the hearing. To the contrary, counsel for 2 Plaintiff, Tabatabai and Turner all stipulated to the granting of the motion, and the arguments of 3 Lindow in opposition to the motion at the hearing were rejected in favor of granting the motion. 4 12. On April 12, I was received a minute order stating that the motion had been 5 withdrawn. 6 13. My office promptly made efforts to correct the error, including multiple phone calls 7 to the clerk’s office and a letter to the clerk. 8 14. If Malek cannot withdraw from this matter immediately he will suffer irreparable 9 harm in the form of harassment and undue burden by continuing to incur fees and being required to 10 appear in the action after his motion was granted. 11 15. Similarly, Tabatabai will suffer irreparable harm by the preclusion of his ability to 12 adequately pursue his assigned claims. 13 16. On Thursday, May 5, 2022, pursuant to California Rule of Court 3.1203, I timely 14 notified, via email, Tanzeel Hak and Lesley Harris, counsel for Shahram Tabatabai and Jeanne Turner 15 Tabatabai, respectively, and Robert Lindow, in pro per, of my intent to submit an Ex Parte 16 Application for an Order Correcting a Clerical Error and for an Order Substituting Shahram 17 Tabatabai, Assignee, as Plaintiff in Substitution of Plaintiff Nemat Maleksalehi Pursuant to the 18 Stipulation. 19 17. The ex parte application will be unopposed by Tabatabai and Turner. 20 18. It is expected that Lindow will once again oppose the motion, but as the Court already 21 knows, Lindow (a vexatious litigant) has no standing to object to the motion – as Malek has not sued 22 Lindow, and Lindow’s cross-claims against Malek have been dismissed via anti-SLAPP. MILLER, MORTON, CAILLAT & NEVIS, LLP 2001 Gateway Place, Suite 220W 23 I declare under penalty of perjury under the laws of the State of California that the foregoing Telephone: (408) 292-1765 San Jose, California 95110 24 is true and correct and that this Declaration was executed this 6th day of May 2022, at San Jose, 25 California. 26 __________________________________ 27 ERIC C. MCALLISTER 893336_1 28 3 DECLARATION OF ERIC C. MCALLISTER IN SUPPORT OF EX PARTE APPLICATION EXHIBIT A