{Converted to text from PDF. The Appendices are in the PDF. The PDF is the controlling document. JM}
Electronically Filed
Mar 11 2016 08:34 a.m.
Tracie K. Lindeman
Clerk of Supreme Court
IN THE SUPREME COURT OF THE STATE OF NEVADA
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REZA ZANDIAN, A/K/A GOLAMREZA ZANDIANJAZI, A/K/A GHOLAM REZA ZANDIAN, A/K/A REZA JAZI, A/K/A J. REZA JAZI, A/K/A G. REZA JAZI, A/K/A GHONOREZA ZANDIAN JAZI, AN INDIVIDUAL, Appellant, vs.
JED MARGOLIN, AN INDIVIDUAL, Respondent.
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Supreme Court No. 69372 District Court Case No. 09OC005791B
MOTION FOR SANCTIONS
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The circumstances indicate this appeal was taken by Appellant Reza Zandian solely for purposes of delay or to otherwise misuse the appellate process. Given the misuse of the appellate process, Respondent Jed Margolin moves this Court for an order imposing NRAP 38 sanctions in order to deter such abusive conduct.
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
On October 19, 2015, in two prior consolidated appeals relating to this matter, this Court affirmed the district court’s denial of Zandian’s NRCP 60(b) motion and its award of attorney fees and costs. See Order of Affirmance (Case
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Nos. 65205 and 65960) attached as Exhibit A. In the Order of Affirmance, this Court related the following background information before concluding the district court did not abuse its discretion:
Appellant’s general denial was stricken by the district court as a sanction for failure to respond to discovery requests. A default judgment was thereafter entered against appellant and attorney fees and costs were awarded to respondent. Over five months after the entry of the default judgment, appellant filed an NRCP 60(b) motion seeking to set aside the default judgment, which was denied by the district court.
Exhibit A at pp. 1-2.
Shortly after the affirmance of the consolidated appeals, on November 6, 2015, the district court entered an order granting Margolin’s June 10, 2015 motion for a debtor examination and to produce documents. See Order Granting Plaintiff’s Motion for Debtor Examination and to Produce Documents attached as Exhibit B. The district court’s order required Zandian to produce financial documents on or before December 21, 2015 and to appear for a debtor’s examination during the month of February 2016. Id.
On December 10, 2015, in an attempt to avoid having to produce the financial documents or to appear for the debtor’s examination, Zandian filed a Notice of Appeal regarding the Order Granting Plaintiff’s Motion for Debtor Examination and to Produce Documents. See Notice of Appeal attached as Exhibit C. On January 7, 2016, this Court entered an Order to Show Cause requiring
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Zandian to show cause why the appeal should not be dismissed for lack of jurisdiction as it appeared the district court’s order “is not substantively appealable.” See Order to Show Cause attached as Exhibit D.
On January 22, 2016, the district court ordered Zandian to appear at a hearing on February 3, 2016 to show cause as to why he should not be held in contempt for failing to comply with the district court’s order to produce the financial documents. See Order to Show Cause attached as Exhibit E. On February 3, 2016, the district court held Zandian in contempt for failing to comply with its order to produce the documents and for failing to appear at the hearing. See Order Holding Defendant in Contempt of Court attached as Exhibit F. As a result of Zandian’s contempt, the district court issued a bench warrant for Zandian’s arrest. Id.; see also Warrant of Arrest attached as Exhibit G.
On February 2, 2015, Zandian filed a response to this Court’s order to show cause. See Appellant’s Response to Order to Show Cause attached as Exhibit H. Zandian acknowledged “no statute or court rule explicitly provides for an appeal from an order directing a debtor’s examination or to produce documents…” Id. at p. 1. Nevertheless, Zandian argued the district court’s order “affects the rights of Appellant under the final judgment and NRS 21.270, as triggered by the final judgment, and therefore the order should constitute a special order after final judgment under NRAP 3A(b)(8).” Id. at p. 2. This Court disagreed with Zandian
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and concluded “that this court lacks jurisdiction over this appeal, and we ORDER this appeal DISMISSED.” See Order Dismissing Appeal attached as Exhibit I.
II. Argument
It is a basic precept of appellate procedure that this Court has jurisdiction to consider an appeal only when the appeal is authorized by statute or court rule. See NRAP 3A(b) (listing orders and judgments from which an appeal may be taken); see also Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 209, 678 P.2d 1152, 1153 (1984) (listing appealable orders). A cursory review demonstrates that an order granting a motion for debtor’s examination and to produce financial documents is not listed as an independently appealable order under NRAP 3A(b). This Court, on its own accord, issued an order to show cause as to why Zandian’s appeal should not be dismissed and because there was no good cause to support this Court’s jurisdiction, the appeal was dismissed.
The dismissal is not a surprise to Zandian as he conceded there was no statute or court rule providing for his appeal from the order directing a debtor’s examination and to produce documents. See Appellant’s Response to Order to Show Cause attached as Exhibit H.
An appeal that lacks any merit constitutes a misuse of the appellate process and is a frivolous appeal. See Works v. Kuhn, 103 Nev. 65, 69 (1987). Pursuant to NRAP 38(b), this Court may impose sanctions in the form of attorney’s fees and
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costs where “an appeal has frivolously been taken or been processed in a frivolous manner.” See NRAP 38(b). Specifically, an appeal is frivolous when it has been filed “solely for purposes of delay” or “whenever the appellate processes of the court have otherwise been misused.” See NRAP 38(b).
This Court should impose sanctions under NRAP 38(b) to discourage Zandian from filing future frivolous appeals.
III. CONCLUSION
Zandian misused the appellate process by knowingly challenging a nonappealable order for the sole purpose of delaying execution of the judgment. Because the appeal was frivolous, this Court should impose the monetary sanctions identified above under NRAP 38.
Dated March 10, 2016.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
/s/ Adam P. McMillen
Matthew D. Francis
Nevada Bar No. 6978
Adam P. McMillen
Nevada Bar No. 10678
5371 Kietzke Lane
Reno, NV 89511
Telephone: 775-324-4100
Attorneys for Respondent Jed Margolin
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CERTIFICATE OF SERVICE
I, the undersigned, certify that on this date a true and correct copy of the foregoing document, MOTION FOR SANCTIONS, will be served upon the following parties hereto through the Court’s electronic notification system:
Severin A. Carlson
Kaempfer Crowell
510 West Fourth Street
Carson City, Nevada 89703
Attorneys for Appellant
I also certify that on this date, I deposited for mailing, in a sealed envelope, with first-class postage prepaid, a true and correct copy of the foregoing document, MOTION FOR SANCTIONS, addressed as follows:
Reza Zandian
c/o Alborz Zandian
9 MacArthur Place, Unit 2105
Santa Ana, CA 92707-6753
DATED: March 10, 2016
/s/ Nancy Lindsley
An Employee of Brownstein Hyatt Farber Schreck, LLP