Preview
1
Tanzeel Hak, State Bar No., 331248
2
By the Law, APC
481 N. Santa Cruz Ave., #233
3 Los Gatos, CA 95030
Tel: (510) 362-6791
4
Email: tanzeel@bythelaw.co
5
6 Attorney for Sean Tabatabai,
7
Defendant, Cross-complainant
and Cross-Defendant
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
IN AND FOR THE COUNTY OF SANTA CRUZ
11
Unlimited Jurisdiction
12
13 NEMAT MALEKSALEHI, Case No.: 18CV02004
14 DEFENDANT AND CROSS-
Plaintiff, COMPLAINANT SHAHRAM
15 vs. TABATABAI’S EX PARTE
APPLICATION TO CONTINUE
16 TRIAL
SHAHRAM TABATABAI, an individual; JEANNE
17 TURNER TABATABAI, an individual; and DOES
1 through 10 inclusive
18
19 Defendants.
____________________________________________
20 SHAHRAM TABATABAI,
21
Cross-Complainant,
22
vs.
23
24 JEANNE TURNER TABATABAI, an individual;
ROBERT LINDOW, an individual; DEBORAH
25
OLINYK, an individual, Any Cross-Defendant,
26 and ROES 1-15.
27 Cross-Defendants.
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 1
1
2 JEANNE TURNER TABATABAI,
3
Cross-Complainant,
4 vs.
5
6
NEMAT MALEKSALEHI, SHAHRAM
TABATABAI, and ROES 1 through 10,
7
Cross-Defendants.
8
9
10 TO ALL PARTIES AND ATTORNEYS OF RECORD:
11
12 PLEASE TAKE NOTICE that, on March 11, 2022, at 1 p.m., or as soon thereafter
13
as the matter may be heard in Department 5 of the above-entitled Court located at 701
Ocean Street, Santa Cruz, CA 95060, Defendant Shahram Tabatabai (“Tabatabai”) will
14
and hereby does request this Court, for an Ex Parte Order that continues trial to a later
15
date.
16
This ex parte application is based upon this Notice, the attached Memorandum
17
of Points and Authorities, Declarations of Shahram Tabatabai and Tanzeel Hak, on the
18
complete files and records of this action, and on such other oral and/or documentary
19
evidence as may be presented at the hearing on this ex parte.
20
21
Dated: March 9, 2022
22
23
_______________________________
24 Tanzeel Hak,
Attorney for Shahram Tabatabai
25
26
27
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 2
MEMORANDUM OF POINTS AND AUTHORITIES
1
I. INTRODUCTION
2
A. Motion for Determination of Good Faith Settlement
3
At mediation, this Court stated that once Plaintiff and Tabatabai had settled, a
4
Motion for Determination of Good Faith Settlement would need to be filed. While
5
negotiations lasted months leading up to the finalization of settlement agreement, there
6
was no way to prepare for the Motion ahead of time given that the settlement could
7
have failed right before execution and the fact that the terms of the agreement were
8
changed up to the very last days prior to execution. Due to the fact that this Court
9
requested this Motion, it can be assumed that there is no scenario in which it would
10
hear it ex parte. Additionally, if this was the only Motion being pursued, Tabatabai
11 could have pursued an ex parte to shorten time as to this single Motion, but he intends
12 to pursue at least one other Motion. He would like to avoid many ex partes and give the
13 opposing parties proper noticed motions which can be opposed.
14 B. Motion to for Leave to Amend Plaintiff Maleksalehi’s Complaint.
15 Since the settlement has been entered, new issues have arose. Given the
16 settlement being finalized less than two months before trial, Tabatabai is placed in a
17 difficult predicament. With the Plaintiff’s assignment of rights that arose from the
18 settlement, Tabatabai has new privileges that did not exist until now. He should be
19 allowed to pursue these rights to the fullest extent, especially if the settlement’s second
20
payment relies on Tabatabai’s judgment/settlement against the remaining parties.
Tabatabai needs to file a Motion for Leave to Amend the Complaint, which was
21
originally Plaintiff’s Complaint. Tabatabai has sufficient evidence that Envision Media
22
and Enabledware were joint ventures and/or alter egos of each other. Tabatabai has
23
personal knowledge of this because he operated both companies. This means that while
24
Plaintiff did not realize he could have pursued an action against Envision Media, the
25
right always existed. Now that Tabatabai has obtained Plaintiff’s rights to this action,
26
Tabatabai would like to pursue such claims against additional Defendant/s. It must
27
also be noted that before this Motion can be pursued, Tabatabai needs to pursue a
28
Motion for Determination of Good Faith Settlement then former Plaintiff needs to file a
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 3
Motion to officially assign his rights to Tabatabai. In other words, this Motion for Leave
1
would be the third Motion pursued.
2
C. Potential Discovery Motions
3
All of the remaining parties are still participating in discovery. It is reasonable to
4
assume that parties may potentially need to pursue a discovery motion/s, but they will
5
be unable to do so. As of right now, the earliest a motion hearing can be scheduled is
6
forty-five days out, which is already past the discovery hearings’ deadline. Almost all of
7
the pending discovery is due at the end of March. Any court invention pursued would
8
have to be ex parte, but this could prejudice the defending party to any given motion.
9
Additionally, there is no method to predict whether there will be no discovery motions,
10
a single discovery motion, or even five or more discovery motions. Lastly, with the new
11 assignment of rights to Tabatabai, he may need to pursue additional discovery, which
12 would require him to file a motion to reopen discovery dependent on what discovery
13 responses he receives.
14 Given the circumstances, even though the parties have moved quickly, it would
15 be virtually impossible to have all of the necessary and potential motions heard prior to
16 the trial set for April 25th, unless every single request was heard on ex parte. This would
17 require several ex partes, and lead to evident issues with parties not having enough
18 time to prepare or oppose the filings. Moreover, with all of the pending discovery, all of
19 the parties could be harmed by not having the ability to pursue potential discovery
20
motions. Lastly, this Court acknowledged at mediation that it was not absolutely certain
that the jury trial would take place on the scheduled date anyways since it would be
21
difficult to gather a jury during the pandemic. For these reasons, this Court should
22
grant this Ex Parte Application and grant a continuance to trial.
23
II. ARGUMENT
24
A. Standard
25
California Rules of Court, Rule 3.1202(c) states, “An applicant must make an
26
affirmative factual showing in a declaration containing competent testimony based on
27
personal knowledge of irreparable harm, immediate danger, or any other statutory
28
basis for granting relief ex parte.”
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 4
A court may grant a continuance before or during trial on an affirmative
1
showing of good cause and each request for a continuance must be considered on its
2
own merits (Cal. Rules of Ct., Rule 3.1332(c)).
3
At this time, at trial date is set for April 25, 2022. As the parties finalize the
4
discovery process, prepare for trial and the last motions are heard by this Court, there is
5
a significant number of items to complete before this case makes its way to trial. It is
6
very likely that any attempt to pursue a regular-scheduled motion to continue trial
7
would not be sound. There is the possibility that the motion would be scheduled after
8
the set trial date. Tabatabai requests that either this Ex Parte Application be granted or
9
in the alternative, a regular scheduled motion is permitted prior to trial. Without one of
10
them happening, Tabatabai (and potentially the other parties) will face immediate
11 danger and irreparable harm. There is firm belief that based on the facts, Maleksalehi
12 could have pursued the lawsuit against Envision Media, that all of the parties could
13 potentially require discovery motions, and it is already established a Motion for
14 Determination of Good Faith Settlement and former Plaintiff’s Motion to assign his
15 rights to Tabatabai are necessary.
16 B. Notice will be provided as required.
17 California Rules of Court, Rule 3.1203 states “[a] party seeking an ex parte order
18 must notify all parties no later than 10:00 A.M. the court day before the ex parte
19 appearance, absent a showing of exceptional circumstances that justify a shorter time
20
for notice.”
Tabatabai intends to give notice to all of the parties as required by the
21
aforementioned Code of Civil Procedure section. In fact, he will provide notice on March
22
9th for the Ex Parte hearing that will be heard two days later. This is more than sufficient
23
notice.
24
C. Defendant will serve the parties with copies of this Ex Parte Application as
25
soon as it is filed.
26
California Rules of Court, Rule 3.1203 states, “Parties appearing at the ex parte
27
hearing must serve the ex parte application or any written opposition on all other
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 5
appearing parties at the first reasonable opportunity. Absent exceptional circumstances,
1
no hearing may be conducted unless such service has been made.”
2
Tabatabai will serve the parties as required by the above-mentioned rule.
3
Tabatabai intends to electronically serve the parties so that everyone has knowledge of
4
the Ex Parte Application and can properly oppose it if necessary. Tabatabai will also
5
provide hardcopies if the parties desire.
6
D. Tabatabai is required to file a Motion for Determination of Good Faith
7
Settlement.
8
Code of Civil Procedure section 877.6 (a) (1) Any party to an action in which it is
9
alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt
10
shall be entitled to a hearing on the issue of the good faith of a settlement entered into
11 by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors,
12 upon giving notice in the manner provided in subdivision (b) of Section 1005. Upon a
13 showing of good cause, the court may shorten the time for giving the required notice to
14 permit the determination of the issue to be made before the commencement of the trial
15 of the action, or before the verdict or judgment if settlement is made after the trial has
16 commenced.
17 (2) In the alternative, a settling party may give notice of settlement to all parties
18 and to the court, together with an application for determination of good faith settlement
19 and a proposed order. The application shall indicate the settling parties, and the basis,
20
terms, and amount of the settlement. The notice, application, and proposed order shall
be given by certified mail, return receipt requested, or by personal service. Proof of
21
service shall be filed with the court. Within 25 days of the mailing of the notice,
22
application, and proposed order, or within 20 days of personal service, a nonsettling
23
party may file a notice of motion to contest the good faith of the settlement. If none of
24
the nonsettling parties files a motion within 25 days of mailing of the notice,
25
application, and proposed order, or within 20 days of personal service, the court may
26
approve the settlement. The notice by a nonsettling party shall be given in the manner
27
provided in subdivision (b) of Section 1005. However, this paragraph shall not apply to
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 6
settlements in which a confidentiality agreement has been entered into regarding the
1
case or the terms of the settlement.
2
As provided at mediation, this Court stated that Tabatabai would have to file a
3
Motion for Determination of Good Faith Settlement so that the opposing parties would
4
have the opportunity to file oppositions. Presumably, this Court did not want to hear
5
this on ex parte, which likely would be unfair to the opposing parties anyways. Also,
6
due to the fact that the settlement was executed on March 1st, Tabatabai would have to
7
not only hope for a hearing date soon, but also have the Motion prepared and ready to
8
file very quickly. Lastly, if for some reason the Motion were to be successfully opposed,
9
the settlement would be voided, and Plaintiff would be forced to pursue his action very
10
last minute without the requisite trial preparation.
11 E. As will be provided in greater detail in the Motion for Leave to Amend the
12 Complaint, Tabatabai has substantial evidence to show that Envision Media is
13 a joint venture and/or alter ego of Enabledware.
14 A court may, in the furtherance of justice, allow a party to amend any pleading
15 on any terms as may be proper. Code Civ. Proc. §§ 473(a) and 576. “This statutory
16 provision giving the courts the power to permit amendments in furtherance of justice
17 has received a very liberal interpretation by the courts of this state.” Klopstock v.
18 Superior Ct. (1941) 17 Cal.2d 13, 19; see also Nestle v. City of Santa Monica (1972) 6 Cal.3d
19 920, 939. “that the trial courts are to liberally permit such amendments, at any stage of
20
the proceeding, has been established policy of this state since 1901.” Hirsa v. Superior Ct.
(1981) 118 Cal.App.3d 486, 488-89 (emphasis in original). “Even on the eve or trial, for
21
example, the court of appeal determined that it was error to deny the amendment of a
22
cross-complaint to add an additional theory of recovery where the delay in seeking the
23
amendment was attributable to the opposing party’s failure to comply with discovery
24
requests.” Sachs v. City of Oceanside (1984) 151 Cal.App.3d 315, 319.
25
Tabatabai has the right to pursue amendments even if it were on the eve of trial.
26
Case precedent requires Courts to liberally permit amendments. Without going into
27
further case law or into the merits of the motion, Tabatabai asserts that as mentioned in
28
Plaintiff’s Complaint, the loans provided to the company were to go to Envision Media
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 7
and Enabledware. While Plaintiff pursued Enabledware in a separate lawsuit, and
1
pursued claims against Tabatabai and Turner here, the party that was involved but not
2
pursued was Envision Media. Not only did Envision Media allegedly receive funds
3
from Plaintiff, but there is evidence of Envision being an alter ego of Enabledware
4
and/or a joint venture, which creates shared liability. Tabatabai hypothetically could
5
have waited until late April to raise issues of amending the Complaint, but he has
6
brought them in front of this Court as quickly as possible and will file the necessary
7
Motion once this Ex Parte is heard and ruled upon.
8
F. There may be additional discovery and potential discovery motions.
9
Code of Civil Procedure section 2024.020 provides, (a) Except as otherwise
10
provided in this chapter, any party shall be entitled as a matter of right to complete
11 discovery proceedings on or before the 30th day, and to have motions concerning
12 discovery heard on or before the 15th day, before the date initially set for the trial of the
13 action.
14 At this time there is a significant amount of discovery pending. Turner has
15 provided discovery requests to Tabatabai, who has provided his own discovery
16 requests to Turner. Tabatabai may pursue a motion to compel against Lindow for the
17 form interrogatories, if potential issues are not resolved. Tabatabai is also waiting for
18 Lindow’s responses to requests for production. Moreover, there are several depositions
19 scheduled for mid-to-late March. Discovery closes on March 28th and the deadline to
20
hear any discovery motion is April 10th. In sum, there is significant amount of discovery
that the parties are waiting upon, which creates the possibility of potential discovery
21
motions.
22
//////
23
//////
24
//////
25
//////
26
//////
27
//////
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 8
III. CONCLUSION
1
Due to the issues provided herein that would require additional motions and
2
hearings, mainly those that arise from the settlement and assignment of rights, this
3
Court should grant this Ex Parte Application.
4
5
Dated: March 9, 2022
6
7
_______________________________
8 Tanzeel Hak,
Attorney for Shahram Tabatabai
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 9
1 DECLARATION OF SHAHRAM TABATABAI IN SUPPORT OF THE EX PARTE
2 APPLICATION
3
4 I, Shahram Tabatabai, under the penalty of perjury under the laws of the state of
5 California, declare:
6
1. I am a Cross-Complainant, Cross-Defendant and Plaintiff (per settlement
7
agreement with former Plaintiff Maleksalehi) in this action.
8
2. If called upon as a witness, I could and would competently testify as to the
9
truthfulness of the following facts, all of which are within my own personal
10
knowledge except for those stated on information and belief, and as to those, I
11
am informed and believe them to be true. I request that the court receive this
12
declaration into evidence as my direct testimony.
13
3. This declaration is not intended to be, nor should it be construed as being a
14
waiver of any information protected by any applicable privilege including
15
privacy, confidentiality, attorney-client privilege or the attorney work-product
16
doctrine. The matters set forth herein were stated and/or observed in non-
17 privileged settings and are not the result of privileged work-product matters.
18 4. I believe there will be great harm and prejudice in this action if this Ex Parte
19 Application is not granted.
20 5. I only recently finalized my settlement with former Plaintiff, Maleksalehi.
21 6. This settlement included multiple parts, including that I had to provide
22 Maleksalehi a security interest on a commercial building that I own.
23 7. This initial step to formalize the settlement is still in progress so it could be
24 argued that the settlement is not completely set in stone at this time.
25 8. Due to the very late settlement, close to trial, new issues have arisen.
26
9. I am required to file a Motion for Determination of Good Faith settlement.
10. Based on my understanding, at this current time, it would not be heard until
27
April 23rd, 2022, which is days before the current trial date.
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 10
11. If the Motion was successfully opposed, it would not be reasonable to have
1
Maleksalehi brought back into the case two days prior to trial and place me in a
2
significantly different position than I currently stand.
3
12. My attorney, Tanzeel Hak, spoke to the civil clerk’s office a week ago and was
4
told that motions would have to be scheduled forty-five days out.
5
13. It is my understanding that the former Plaintiff’s counsel is also working on a
6
Motion to officially assign his rights to myself. This would likely be heard
7
around the time of trial as well.
8
14. I would like to amend the Complaint once the rights are officially assigned to me
9
to include other party/parties.
10
15. To amend the Complaint, I would need to file another Motion to allow me to do
11 so.
12 16. With all of the parties engaging in last minute discovery, there simply would not
13 be any time to hear any potential discovery motions, if issues arose.
14 17. This could negatively impact the parties.
15 18. I believe considering the hearings that need to be scheduled under time restraints
16 and the potential issues that can arise with discovery, this Court should grant
17 this Ex Parte Application to Continue Trial.
18
19 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
20
Executed this March 9, 2022 at Aptos, California.
21
22
________________________________
23
Shahram Tabatabai
24
25
26
27
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 11
1 DECLARATION OF TANZEEL HAK
2 I, Tanzeel Hak, under the penalty of perjury under the laws of the state of
3 California, declare:
4
1. I am the attorney at law, duly admitted to practice before all of the courts in the
5
State of California. I am familiar with the aspects of this case, including all of the
6
matters which are set forth in this Declaration.
7
2. If called upon as a witness, I could and would competently testify as to the
8
truthfulness of the following facts, all of which are within my own personal
9
knowledge except for those stated on information and belief, and as to those, I
10
am informed and believe them to be true. I request that the court receive this
11
declaration into evidence as my direct testimony.
12
3. This declaration is not intended to be, nor should it be construed as being a
13
waiver of any information protected by any applicable privilege including
14
privacy, confidentiality, attorney-client privilege or the attorney work-product
15 doctrine. The matters set forth herein were stated and/or observed in non-
16 privileged settings and are not the result of privileged work-product matters.
17 4. After making this filing, I will officially notify the parties that I have submitted
18 this ex parte application and provide them with notice as to when the hearing
19 will occur, which is Friday, March 11, 2022.
20 5. The parties and/or their attorneys will be notified via email as we normally
21 communicate to avoid any misunderstandings. I will send the email on March 9,
22 2022, so that the parties/attorneys have greater notice than what is required
23 under California Rules of Court, Rule 3.1203.
24
6. In my email notice to the parties/attorneys, I will provide a copy of this Ex Parte
Application and Proposed Order.
25
7. The attached service list will satisfy the California Rules of Court Rule 3.1202.
26
8. It is my understanding that the parties may oppose this Ex Parte Application.
27
9. In an email sent in earlier week/s, Ms. Harris, counsel for Jeanne Turner, made it
28
apparent that she was against the idea of moving trial.
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 12
10. Mr. Lindow did not provide his opinion to this, Ms. Olinyk is in default, and Mr.
1
Maleksalehi is no longer a party to this action (but his counsel was given notice
2
of Tabatabai’s intention to continue trial).
3
11. I spoke with the civil clerk’s office a week ago and was told that the earliest
4
hearing which could be scheduled would be forty-five days out.
5
12. At this time, forty-five days out from today takes us to April 23, 2022.
6
13. It is virtually impossible to focus specifically on this one case, when I have a
7
greater case load to deal with.
8
14. Even if I were to put all of my other cases aside to focus on this one, I do not
9
believe I would be able to prepare all of the necessary motions in time for
10
everything to be heard prior to trial.
11 15. Even if I could manage to do this, other issues would arise.
12 16. With discovery responses being provided close to the discovery deadline and
13 depositions being held close to the deadline, it would be virtually impossible to
14 analyze everything, meet and confer, prepare potential discovery motions and
15 request hearing dates all prior to the current trial date.
16 17. Even if I scheduled a hearing date for a potential discovery motion, which would
17 not be logical, the hearing date would be on or after April 23rd from my
18 understanding.
19 18. April 23rd is already past the discovery hearing’s deadline.
20
19. This is not only true for Mr. Tabatabai, but for all of the parties.
20. I cannot speak for the former Plaintiff, but I assume his counsel cannot simply
21
rush through his Motion to assign the case to my client either and his Motion
22
likely would be scheduled after the trial date of April 25th.
23
21. This Court should continue the trial to a time period it believes is appropriate
24
given the circumstances.
25
22. At this time, it does not appear anything will be able to be heard before the trial
26
unless everything is heard ex parte rather than through noticed motions.
27
23. Even this request to continue trial has to be heard ex parte or there would not be
28
sufficient time.
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 13
24. Mr. Tabatabai’s only request is that there be a continuance long enough to
1
accommodate all of the required Motions (Motion for Determination of Good
2
Faith Settlement, former Plaintiff’s Motion to assign his rights to Tabatabai,
3
Motion for Leave to Amend Plaintiff’s Complaint) and all of the potential
4
discovery motions, which can be significant.
5
6
I declare under penalty of perjury under the laws of the State of California
7 that the foregoing is true and correct.
8
Executed this March 9, 2022 at Los Gatos, California.
9
10
________________________________
11 Tanzeel Hak
Attorney for Shahram Tabatabai
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE
TRIAL Page 14
Preview
1 Tanzeel Hak, State Bar No., 331248 2 By the Law, APC 481 N. Santa Cruz Ave., #233 3 Los Gatos, CA 95030 Tel: (510) 362-6791 4 Email: tanzeel@bythelaw.co 5 6 Attorney for Sean Tabatabai, 7 Defendant, Cross-complainant and Cross-Defendant 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SANTA CRUZ 11 Unlimited Jurisdiction 12 13 NEMAT MALEKSALEHI, Case No.: 18CV02004 14 DEFENDANT AND CROSS- Plaintiff, COMPLAINANT SHAHRAM 15 vs. TABATABAI’S EX PARTE APPLICATION TO CONTINUE 16 TRIAL SHAHRAM TABATABAI, an individual; JEANNE 17 TURNER TABATABAI, an individual; and DOES 1 through 10 inclusive 18 19 Defendants. ____________________________________________ 20 SHAHRAM TABATABAI, 21 Cross-Complainant, 22 vs. 23 24 JEANNE TURNER TABATABAI, an individual; ROBERT LINDOW, an individual; DEBORAH 25 OLINYK, an individual, Any Cross-Defendant, 26 and ROES 1-15. 27 Cross-Defendants. 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 1 1 2 JEANNE TURNER TABATABAI, 3 Cross-Complainant, 4 vs. 5 6 NEMAT MALEKSALEHI, SHAHRAM TABATABAI, and ROES 1 through 10, 7 Cross-Defendants. 8 9 10 TO ALL PARTIES AND ATTORNEYS OF RECORD: 11 12 PLEASE TAKE NOTICE that, on March 11, 2022, at 1 p.m., or as soon thereafter 13 as the matter may be heard in Department 5 of the above-entitled Court located at 701 Ocean Street, Santa Cruz, CA 95060, Defendant Shahram Tabatabai (“Tabatabai”) will 14 and hereby does request this Court, for an Ex Parte Order that continues trial to a later 15 date. 16 This ex parte application is based upon this Notice, the attached Memorandum 17 of Points and Authorities, Declarations of Shahram Tabatabai and Tanzeel Hak, on the 18 complete files and records of this action, and on such other oral and/or documentary 19 evidence as may be presented at the hearing on this ex parte. 20 21 Dated: March 9, 2022 22 23 _______________________________ 24 Tanzeel Hak, Attorney for Shahram Tabatabai 25 26 27 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 2 MEMORANDUM OF POINTS AND AUTHORITIES 1 I. INTRODUCTION 2 A. Motion for Determination of Good Faith Settlement 3 At mediation, this Court stated that once Plaintiff and Tabatabai had settled, a 4 Motion for Determination of Good Faith Settlement would need to be filed. While 5 negotiations lasted months leading up to the finalization of settlement agreement, there 6 was no way to prepare for the Motion ahead of time given that the settlement could 7 have failed right before execution and the fact that the terms of the agreement were 8 changed up to the very last days prior to execution. Due to the fact that this Court 9 requested this Motion, it can be assumed that there is no scenario in which it would 10 hear it ex parte. Additionally, if this was the only Motion being pursued, Tabatabai 11 could have pursued an ex parte to shorten time as to this single Motion, but he intends 12 to pursue at least one other Motion. He would like to avoid many ex partes and give the 13 opposing parties proper noticed motions which can be opposed. 14 B. Motion to for Leave to Amend Plaintiff Maleksalehi’s Complaint. 15 Since the settlement has been entered, new issues have arose. Given the 16 settlement being finalized less than two months before trial, Tabatabai is placed in a 17 difficult predicament. With the Plaintiff’s assignment of rights that arose from the 18 settlement, Tabatabai has new privileges that did not exist until now. He should be 19 allowed to pursue these rights to the fullest extent, especially if the settlement’s second 20 payment relies on Tabatabai’s judgment/settlement against the remaining parties. Tabatabai needs to file a Motion for Leave to Amend the Complaint, which was 21 originally Plaintiff’s Complaint. Tabatabai has sufficient evidence that Envision Media 22 and Enabledware were joint ventures and/or alter egos of each other. Tabatabai has 23 personal knowledge of this because he operated both companies. This means that while 24 Plaintiff did not realize he could have pursued an action against Envision Media, the 25 right always existed. Now that Tabatabai has obtained Plaintiff’s rights to this action, 26 Tabatabai would like to pursue such claims against additional Defendant/s. It must 27 also be noted that before this Motion can be pursued, Tabatabai needs to pursue a 28 Motion for Determination of Good Faith Settlement then former Plaintiff needs to file a DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 3 Motion to officially assign his rights to Tabatabai. In other words, this Motion for Leave 1 would be the third Motion pursued. 2 C. Potential Discovery Motions 3 All of the remaining parties are still participating in discovery. It is reasonable to 4 assume that parties may potentially need to pursue a discovery motion/s, but they will 5 be unable to do so. As of right now, the earliest a motion hearing can be scheduled is 6 forty-five days out, which is already past the discovery hearings’ deadline. Almost all of 7 the pending discovery is due at the end of March. Any court invention pursued would 8 have to be ex parte, but this could prejudice the defending party to any given motion. 9 Additionally, there is no method to predict whether there will be no discovery motions, 10 a single discovery motion, or even five or more discovery motions. Lastly, with the new 11 assignment of rights to Tabatabai, he may need to pursue additional discovery, which 12 would require him to file a motion to reopen discovery dependent on what discovery 13 responses he receives. 14 Given the circumstances, even though the parties have moved quickly, it would 15 be virtually impossible to have all of the necessary and potential motions heard prior to 16 the trial set for April 25th, unless every single request was heard on ex parte. This would 17 require several ex partes, and lead to evident issues with parties not having enough 18 time to prepare or oppose the filings. Moreover, with all of the pending discovery, all of 19 the parties could be harmed by not having the ability to pursue potential discovery 20 motions. Lastly, this Court acknowledged at mediation that it was not absolutely certain that the jury trial would take place on the scheduled date anyways since it would be 21 difficult to gather a jury during the pandemic. For these reasons, this Court should 22 grant this Ex Parte Application and grant a continuance to trial. 23 II. ARGUMENT 24 A. Standard 25 California Rules of Court, Rule 3.1202(c) states, “An applicant must make an 26 affirmative factual showing in a declaration containing competent testimony based on 27 personal knowledge of irreparable harm, immediate danger, or any other statutory 28 basis for granting relief ex parte.” DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 4 A court may grant a continuance before or during trial on an affirmative 1 showing of good cause and each request for a continuance must be considered on its 2 own merits (Cal. Rules of Ct., Rule 3.1332(c)). 3 At this time, at trial date is set for April 25, 2022. As the parties finalize the 4 discovery process, prepare for trial and the last motions are heard by this Court, there is 5 a significant number of items to complete before this case makes its way to trial. It is 6 very likely that any attempt to pursue a regular-scheduled motion to continue trial 7 would not be sound. There is the possibility that the motion would be scheduled after 8 the set trial date. Tabatabai requests that either this Ex Parte Application be granted or 9 in the alternative, a regular scheduled motion is permitted prior to trial. Without one of 10 them happening, Tabatabai (and potentially the other parties) will face immediate 11 danger and irreparable harm. There is firm belief that based on the facts, Maleksalehi 12 could have pursued the lawsuit against Envision Media, that all of the parties could 13 potentially require discovery motions, and it is already established a Motion for 14 Determination of Good Faith Settlement and former Plaintiff’s Motion to assign his 15 rights to Tabatabai are necessary. 16 B. Notice will be provided as required. 17 California Rules of Court, Rule 3.1203 states “[a] party seeking an ex parte order 18 must notify all parties no later than 10:00 A.M. the court day before the ex parte 19 appearance, absent a showing of exceptional circumstances that justify a shorter time 20 for notice.” Tabatabai intends to give notice to all of the parties as required by the 21 aforementioned Code of Civil Procedure section. In fact, he will provide notice on March 22 9th for the Ex Parte hearing that will be heard two days later. This is more than sufficient 23 notice. 24 C. Defendant will serve the parties with copies of this Ex Parte Application as 25 soon as it is filed. 26 California Rules of Court, Rule 3.1203 states, “Parties appearing at the ex parte 27 hearing must serve the ex parte application or any written opposition on all other 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 5 appearing parties at the first reasonable opportunity. Absent exceptional circumstances, 1 no hearing may be conducted unless such service has been made.” 2 Tabatabai will serve the parties as required by the above-mentioned rule. 3 Tabatabai intends to electronically serve the parties so that everyone has knowledge of 4 the Ex Parte Application and can properly oppose it if necessary. Tabatabai will also 5 provide hardcopies if the parties desire. 6 D. Tabatabai is required to file a Motion for Determination of Good Faith 7 Settlement. 8 Code of Civil Procedure section 877.6 (a) (1) Any party to an action in which it is 9 alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt 10 shall be entitled to a hearing on the issue of the good faith of a settlement entered into 11 by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, 12 upon giving notice in the manner provided in subdivision (b) of Section 1005. Upon a 13 showing of good cause, the court may shorten the time for giving the required notice to 14 permit the determination of the issue to be made before the commencement of the trial 15 of the action, or before the verdict or judgment if settlement is made after the trial has 16 commenced. 17 (2) In the alternative, a settling party may give notice of settlement to all parties 18 and to the court, together with an application for determination of good faith settlement 19 and a proposed order. The application shall indicate the settling parties, and the basis, 20 terms, and amount of the settlement. The notice, application, and proposed order shall be given by certified mail, return receipt requested, or by personal service. Proof of 21 service shall be filed with the court. Within 25 days of the mailing of the notice, 22 application, and proposed order, or within 20 days of personal service, a nonsettling 23 party may file a notice of motion to contest the good faith of the settlement. If none of 24 the nonsettling parties files a motion within 25 days of mailing of the notice, 25 application, and proposed order, or within 20 days of personal service, the court may 26 approve the settlement. The notice by a nonsettling party shall be given in the manner 27 provided in subdivision (b) of Section 1005. However, this paragraph shall not apply to 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 6 settlements in which a confidentiality agreement has been entered into regarding the 1 case or the terms of the settlement. 2 As provided at mediation, this Court stated that Tabatabai would have to file a 3 Motion for Determination of Good Faith Settlement so that the opposing parties would 4 have the opportunity to file oppositions. Presumably, this Court did not want to hear 5 this on ex parte, which likely would be unfair to the opposing parties anyways. Also, 6 due to the fact that the settlement was executed on March 1st, Tabatabai would have to 7 not only hope for a hearing date soon, but also have the Motion prepared and ready to 8 file very quickly. Lastly, if for some reason the Motion were to be successfully opposed, 9 the settlement would be voided, and Plaintiff would be forced to pursue his action very 10 last minute without the requisite trial preparation. 11 E. As will be provided in greater detail in the Motion for Leave to Amend the 12 Complaint, Tabatabai has substantial evidence to show that Envision Media is 13 a joint venture and/or alter ego of Enabledware. 14 A court may, in the furtherance of justice, allow a party to amend any pleading 15 on any terms as may be proper. Code Civ. Proc. §§ 473(a) and 576. “This statutory 16 provision giving the courts the power to permit amendments in furtherance of justice 17 has received a very liberal interpretation by the courts of this state.” Klopstock v. 18 Superior Ct. (1941) 17 Cal.2d 13, 19; see also Nestle v. City of Santa Monica (1972) 6 Cal.3d 19 920, 939. “that the trial courts are to liberally permit such amendments, at any stage of 20 the proceeding, has been established policy of this state since 1901.” Hirsa v. Superior Ct. (1981) 118 Cal.App.3d 486, 488-89 (emphasis in original). “Even on the eve or trial, for 21 example, the court of appeal determined that it was error to deny the amendment of a 22 cross-complaint to add an additional theory of recovery where the delay in seeking the 23 amendment was attributable to the opposing party’s failure to comply with discovery 24 requests.” Sachs v. City of Oceanside (1984) 151 Cal.App.3d 315, 319. 25 Tabatabai has the right to pursue amendments even if it were on the eve of trial. 26 Case precedent requires Courts to liberally permit amendments. Without going into 27 further case law or into the merits of the motion, Tabatabai asserts that as mentioned in 28 Plaintiff’s Complaint, the loans provided to the company were to go to Envision Media DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 7 and Enabledware. While Plaintiff pursued Enabledware in a separate lawsuit, and 1 pursued claims against Tabatabai and Turner here, the party that was involved but not 2 pursued was Envision Media. Not only did Envision Media allegedly receive funds 3 from Plaintiff, but there is evidence of Envision being an alter ego of Enabledware 4 and/or a joint venture, which creates shared liability. Tabatabai hypothetically could 5 have waited until late April to raise issues of amending the Complaint, but he has 6 brought them in front of this Court as quickly as possible and will file the necessary 7 Motion once this Ex Parte is heard and ruled upon. 8 F. There may be additional discovery and potential discovery motions. 9 Code of Civil Procedure section 2024.020 provides, (a) Except as otherwise 10 provided in this chapter, any party shall be entitled as a matter of right to complete 11 discovery proceedings on or before the 30th day, and to have motions concerning 12 discovery heard on or before the 15th day, before the date initially set for the trial of the 13 action. 14 At this time there is a significant amount of discovery pending. Turner has 15 provided discovery requests to Tabatabai, who has provided his own discovery 16 requests to Turner. Tabatabai may pursue a motion to compel against Lindow for the 17 form interrogatories, if potential issues are not resolved. Tabatabai is also waiting for 18 Lindow’s responses to requests for production. Moreover, there are several depositions 19 scheduled for mid-to-late March. Discovery closes on March 28th and the deadline to 20 hear any discovery motion is April 10th. In sum, there is significant amount of discovery that the parties are waiting upon, which creates the possibility of potential discovery 21 motions. 22 ////// 23 ////// 24 ////// 25 ////// 26 ////// 27 ////// 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 8 III. CONCLUSION 1 Due to the issues provided herein that would require additional motions and 2 hearings, mainly those that arise from the settlement and assignment of rights, this 3 Court should grant this Ex Parte Application. 4 5 Dated: March 9, 2022 6 7 _______________________________ 8 Tanzeel Hak, Attorney for Shahram Tabatabai 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 9 1 DECLARATION OF SHAHRAM TABATABAI IN SUPPORT OF THE EX PARTE 2 APPLICATION 3 4 I, Shahram Tabatabai, under the penalty of perjury under the laws of the state of 5 California, declare: 6 1. I am a Cross-Complainant, Cross-Defendant and Plaintiff (per settlement 7 agreement with former Plaintiff Maleksalehi) in this action. 8 2. If called upon as a witness, I could and would competently testify as to the 9 truthfulness of the following facts, all of which are within my own personal 10 knowledge except for those stated on information and belief, and as to those, I 11 am informed and believe them to be true. I request that the court receive this 12 declaration into evidence as my direct testimony. 13 3. This declaration is not intended to be, nor should it be construed as being a 14 waiver of any information protected by any applicable privilege including 15 privacy, confidentiality, attorney-client privilege or the attorney work-product 16 doctrine. The matters set forth herein were stated and/or observed in non- 17 privileged settings and are not the result of privileged work-product matters. 18 4. I believe there will be great harm and prejudice in this action if this Ex Parte 19 Application is not granted. 20 5. I only recently finalized my settlement with former Plaintiff, Maleksalehi. 21 6. This settlement included multiple parts, including that I had to provide 22 Maleksalehi a security interest on a commercial building that I own. 23 7. This initial step to formalize the settlement is still in progress so it could be 24 argued that the settlement is not completely set in stone at this time. 25 8. Due to the very late settlement, close to trial, new issues have arisen. 26 9. I am required to file a Motion for Determination of Good Faith settlement. 10. Based on my understanding, at this current time, it would not be heard until 27 April 23rd, 2022, which is days before the current trial date. 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 10 11. If the Motion was successfully opposed, it would not be reasonable to have 1 Maleksalehi brought back into the case two days prior to trial and place me in a 2 significantly different position than I currently stand. 3 12. My attorney, Tanzeel Hak, spoke to the civil clerk’s office a week ago and was 4 told that motions would have to be scheduled forty-five days out. 5 13. It is my understanding that the former Plaintiff’s counsel is also working on a 6 Motion to officially assign his rights to myself. This would likely be heard 7 around the time of trial as well. 8 14. I would like to amend the Complaint once the rights are officially assigned to me 9 to include other party/parties. 10 15. To amend the Complaint, I would need to file another Motion to allow me to do 11 so. 12 16. With all of the parties engaging in last minute discovery, there simply would not 13 be any time to hear any potential discovery motions, if issues arose. 14 17. This could negatively impact the parties. 15 18. I believe considering the hearings that need to be scheduled under time restraints 16 and the potential issues that can arise with discovery, this Court should grant 17 this Ex Parte Application to Continue Trial. 18 19 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 Executed this March 9, 2022 at Aptos, California. 21 22 ________________________________ 23 Shahram Tabatabai 24 25 26 27 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 11 1 DECLARATION OF TANZEEL HAK 2 I, Tanzeel Hak, under the penalty of perjury under the laws of the state of 3 California, declare: 4 1. I am the attorney at law, duly admitted to practice before all of the courts in the 5 State of California. I am familiar with the aspects of this case, including all of the 6 matters which are set forth in this Declaration. 7 2. If called upon as a witness, I could and would competently testify as to the 8 truthfulness of the following facts, all of which are within my own personal 9 knowledge except for those stated on information and belief, and as to those, I 10 am informed and believe them to be true. I request that the court receive this 11 declaration into evidence as my direct testimony. 12 3. This declaration is not intended to be, nor should it be construed as being a 13 waiver of any information protected by any applicable privilege including 14 privacy, confidentiality, attorney-client privilege or the attorney work-product 15 doctrine. The matters set forth herein were stated and/or observed in non- 16 privileged settings and are not the result of privileged work-product matters. 17 4. After making this filing, I will officially notify the parties that I have submitted 18 this ex parte application and provide them with notice as to when the hearing 19 will occur, which is Friday, March 11, 2022. 20 5. The parties and/or their attorneys will be notified via email as we normally 21 communicate to avoid any misunderstandings. I will send the email on March 9, 22 2022, so that the parties/attorneys have greater notice than what is required 23 under California Rules of Court, Rule 3.1203. 24 6. In my email notice to the parties/attorneys, I will provide a copy of this Ex Parte Application and Proposed Order. 25 7. The attached service list will satisfy the California Rules of Court Rule 3.1202. 26 8. It is my understanding that the parties may oppose this Ex Parte Application. 27 9. In an email sent in earlier week/s, Ms. Harris, counsel for Jeanne Turner, made it 28 apparent that she was against the idea of moving trial. DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 12 10. Mr. Lindow did not provide his opinion to this, Ms. Olinyk is in default, and Mr. 1 Maleksalehi is no longer a party to this action (but his counsel was given notice 2 of Tabatabai’s intention to continue trial). 3 11. I spoke with the civil clerk’s office a week ago and was told that the earliest 4 hearing which could be scheduled would be forty-five days out. 5 12. At this time, forty-five days out from today takes us to April 23, 2022. 6 13. It is virtually impossible to focus specifically on this one case, when I have a 7 greater case load to deal with. 8 14. Even if I were to put all of my other cases aside to focus on this one, I do not 9 believe I would be able to prepare all of the necessary motions in time for 10 everything to be heard prior to trial. 11 15. Even if I could manage to do this, other issues would arise. 12 16. With discovery responses being provided close to the discovery deadline and 13 depositions being held close to the deadline, it would be virtually impossible to 14 analyze everything, meet and confer, prepare potential discovery motions and 15 request hearing dates all prior to the current trial date. 16 17. Even if I scheduled a hearing date for a potential discovery motion, which would 17 not be logical, the hearing date would be on or after April 23rd from my 18 understanding. 19 18. April 23rd is already past the discovery hearing’s deadline. 20 19. This is not only true for Mr. Tabatabai, but for all of the parties. 20. I cannot speak for the former Plaintiff, but I assume his counsel cannot simply 21 rush through his Motion to assign the case to my client either and his Motion 22 likely would be scheduled after the trial date of April 25th. 23 21. This Court should continue the trial to a time period it believes is appropriate 24 given the circumstances. 25 22. At this time, it does not appear anything will be able to be heard before the trial 26 unless everything is heard ex parte rather than through noticed motions. 27 23. Even this request to continue trial has to be heard ex parte or there would not be 28 sufficient time. DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 13 24. Mr. Tabatabai’s only request is that there be a continuance long enough to 1 accommodate all of the required Motions (Motion for Determination of Good 2 Faith Settlement, former Plaintiff’s Motion to assign his rights to Tabatabai, 3 Motion for Leave to Amend Plaintiff’s Complaint) and all of the potential 4 discovery motions, which can be significant. 5 6 I declare under penalty of perjury under the laws of the State of California 7 that the foregoing is true and correct. 8 Executed this March 9, 2022 at Los Gatos, California. 9 10 ________________________________ 11 Tanzeel Hak Attorney for Shahram Tabatabai 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-COMPLAINANT SHAHRAM TABATABAI’S EX PARTE APPLICATION TO CONTINUE TRIAL Page 14