Motion to Quash

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Case No.:09 OC 00279 lB

Dept. No.: 1

THE O'MARA LAW FIRM, P.C.

David C. O'Mara, Esq., (NV Bar 8599)

311 E. Liberty Street Reno, Nevada 89501 775.323.1321

david@omaralaw.net

Counsel for Defendant

IN THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR CARSON CITY

MOTION TO QUASH AMENDED ARRESET {sic} WARRANT

JED MARGOLIN, an individual,

Plaintiff,

OPTIMA TECHNOLOGY CORPORATION, a California corporation, OPTIMA TECHNOLOGY CORPORATION, a Nevada corporation, REZA ZANDIAN, aka GOLDEMREZA {sic} ZANDIANJAZI, aka GHOLEM REZA ZANDIAN, aka REZA JAZI, aka J. REZA JAZI aka G. REZA JAZI aka GHONOREZA ZANDIAN JAZI, an individual, DOE Companies 1-10, DOE Corporations 11-20, and DOE Individuals 21-30, inclusive,

Defendants.

Gholam Reza Zandian, aka Reza Zandian, ("Defendant") by and through his attorney, David C. O'Mara, Esq., of The O'Mara Law Firm, P.C., moves this court to quash the Amended Arrest Warrant that was issued June 7, 2019, and the Arrest Warrant that was issued on February 3, 2016. Defendant has sought to have this motion and petition heard on an expedited basis and has filed an ex parte motion to shorten time in conjunction with this pleading. This pleading is based upon the Memorandum of Points and Authorities, the Declaration of David C. O'Mara, Esq. in Support of the Motion to Quash, and is made in good faith.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

On January 14, 2016, Plaintiff filed a motion for order to show cause regarding contempt and ex parte motion for order shortening time. Plaintiff sought to hold Defendant in contempt of court for failing to produce documents related to Defendants. Not included in the motion for order to show cause was an affidavit required under NRS 22.030(2). See O'Mara Decl., Exhibit 1.

On January 22, 2016, the Court issued an order to show cause and set a hearing for February 3, 2016. At the February 3, 2016, hearing, Defendant was not present and thus, this Court found that "based on the failure to comply with this Court's Order and additionally failing to appear before this Court, Defendant is in contempt of this Court pursuant to NRS 22.010." See O'Mara Decl., Exhibit 2. (emphasis added). An Arrest Warrant was issued on the same day, in which the Court stated, "by virtue of this Warrant of Arrest, you are hereby commanded to arrest the above-named Defendant, and bring him before this Court, pursuant to NRS 22.010, NRS 22.040, NRS 22.050 and 22.100. See O'Mara Decl., Exhibit 3. A subsequent Amended Arrest Warrant was issued on June 7, 2019, which is substantially the same, save and except the case number was modified to include the proper case number.

The Defendant was recently arrested on the improper arrest warrant and is currently being restrained at the Maple River Correctional Facility in Riverside, California, and he remains in custody today. The time in which Defendant could be restrained in California and subsequently in Nevada is likely to exceed the 25 days allowed as a punishment pursuant to NRS 22.100.

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LEGAL DISCUSSION

A. The District Court did not have jurisdiction to find Defendant in contempt.

On January 14, 2016, a motion for order to show cause regarding contempt and ex parte motion for order shortening time was filed against Defendant by the Plaintiff. Defendant sought to hold Defendant in contempt for his failure to produce documents required by Court Order. The Plaintiff's allegation of contempt by Defendant was based on Defendant's inaction to produce documents that were not committed in the immediate view and presence of the court or judge.

Considering Plaintiff's allegations that contempt was committed outside the view and presence of the court or judge, Plaintiff was required to present and "affidavit" "to the court or judge of the facts constituting the contempt." See NRS 22.030.

The law is clear in Nevada that before a court can assume jurisdiction to hold a person in contempt, an affidavit must be filed. See Steeves v. District Court, 59 Nev. 405, 413, 94 P.2d 1093, 1095-96 (1939). In Awad v. Wright, 106 Nev. 407, 794 P.3d 713 the Nevada Supreme Court specifically stated that, because the party "did not file an affidavit with the order to show cause, the district court did not have jurisdiction to hold Awad in contempt of court." See Awad v. Wright, 106 Nev. 407, 794 P.3d 713, see also Pengilly v. Rancho Sante Fee Homeowners Assn, 116 Nev. 646, 650, 5 P.3d 569 ("A writ of prohibition is available where the district court clearly exceeded its jurisdiction—for example, when a finding of indirect contempt is not based upon a proper affidavit.")

Plaintiff alleges that this Court Ordered Defendant to produce documents to Plaintiff by December 21, 2015, as part of the District Court's Order Granting Plaintiff's Motion for Debtor Examination and to Produce Documents. Even if the Court believes that Defendant did not produce the documents, as it did at the February 3, 2016, hearing, Defendant's failure to act was not in the "immediate view and presence of the court and judge at chambers, and thus, NRS 22.030(2) specifically requires that an: affidavit be presented to the court or judge of the facts constituting the contempt." NRS 22.030(2).

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While the Courts have inherent power "to protect and defend their decrees by contempt proceedings, they are nevertheless bound by statute." Awad, 106 Nev. at 409. The failure of the Court to require Plaintiff to submit an affidavit pursuant to statute is a violation of NRS 22.030(2).

Accordingly, because Plaintiff did not file an affidavit with his motion for order to show cause, the District Court did not have jurisdiction to hold Defendant in contempt of court. Additionally, the Court did not have jurisdiction to issue the Order to Show Cause why Defendant should not be held in contempt. Therefore, the arrest warrant must be quashed immediately.

B. The Arrest Warrant violates Nevada Law and is not allowed upon the finding of contempt.

The District Court had no legal authority to issue a bench warrant after it had already determined that Defendant was in contempt of court. As stated above, the District Court did not have jurisdiction to find Defendant in contempt, nor did it have jurisdiction to issue the order to show cause.

A person cannot be held in contempt for failing to appear if the order they are accused of violating is void. According to Nevada law, disobedience or resistance to any lawful writ, order, rule, or process issued by the court or judge at chambers is deemed contempt. See N.R.S. 22.010 (emphasis added). If the order is void, it is not lawful, and thus disobedience to it cannot constitute contempt.

In the case of Cunningham v. Eighth Judicial Dist. Court, the Supreme Court of Nevada held that a contempt order issued without jurisdiction is void. See Cunningham v. Eighth Judicial Dist. Court of State of Nev., In and For Clark County, 102 Nev. 551 (1986) Similarly, in Steeves v. Second Judicial District Court, the petitioner argued that the show cause order was void because the affidavit upon which it was based did not allege facts showing the petitioner's ability to comply with the decree, and thus the court lacked jurisdiction to issue the order. See Steeves v. Second Judicial District Court in and for Washoe County, 59 Nev. 405 (1939[1]

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[1] In an unpublished decision, the Nevada Court of Appeals, in Yasol v. Greenhill, 137 Nev. 980, 480 P,3d. 881(2021) vacated a contempt order because the affidavit attached to the motion for an order to show cause was facially deficient.

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In this case, the District Court already improperly found that Defendant was in contempt, and thus, the arrest warrant was not authorized under Nevada law. Indeed NRS 22.40 only provides authority to issue an arrest warrant to bring the person "charged to answer." Since the District Court has already improperly determined that Defendant was in contempt, the Court has no authority to arrest Defendant and have him answer to a motion that the District Court lacks jurisdiction to hear.

Accordingly, the arrest warrant issued against Defendant must be quashed.

C. The Arrest Warrant must be quashed because it is a criminal sanction that violates the protections afforded to Defendant under the Constitution.

The use of an arrest warrant by the District Court is a criminal punishment against Defendant which violates Defendant's Constitutional Rights. Indeed, "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Intl Union, United Mine Workers of Am. v Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (internal quotation marks omitted); see also City Council of Reno v. Reno Newspapers, Inc., 105 Nev. 886, 893-94, 784 P.2d 974, 979 (1989).

"[W]hether a contempt is civil or criminal turns on the 'character and purpose' of the sanction involved. Thus, a contempt sanction is considered civil if it 'is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Bagwell, 512 U.S. at 827-28, 114 S.Ct. 2552 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797 (1911)). The United States Supreme Court has further explained as follows:

The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." [Gompers, 221 U.S. at 442, 31 S.Ct. 492.] If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order.

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Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) (emphasis added).

In Lewis v. Lewis, the Nevada Supreme Court held that "in order for a contempt order imposing a determinate sentence to be civil in nature, it must contain a purge clause ... [which] gives the defendant the opportunity to purge himself of the contempt sentence by complying with the terms of the contempt order." Lewis, 132 Nev. at 457, 373 P.3d at 881 (citing Hicks, 485 U.S. at 640, 108 S.Ct. 1423). The Supreme Court concluded that an order of incarceration must contain a purge clause to be civil. Incarceration remedies contempt by coercing compliance. A purge clause incentivizes compliance and thereby ensures that incarceration serves its remedial purpose. Conversely, if the defendant has "no way to purge his sentence to avoid or get out of jail," then the incarceration fails to incentivize any action and can have no purpose but punishment. Id. at 458, 373 P.3d at 881.

In this case, the District Court did not include a purge clause in the arrest warrant so that Defendant could avoid or get out of jail. In fact, while the Court found Defendant in contempt, the Court did not issue any subsequent order that required Defendant to produce the various documents and bring himself in compliance before he was subject to incarceration.

Accordingly, the Court's bench warrant must be quashed because the Court's sanction violates Defendant's constitutional rights.

CONCLUSION

Based upon the facts and circumstances of this case, the District Court did not have jurisdiction to issue an order to show cause order, an order of contempt and/or an arrest warrant. The District Court's actions violate Nevada law and Defendant's Constitutional Rights. Accordingly, the District Court must quash the arrest warrant immediately.

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CERTIFICATE OF SERVICE

I hereby certify that I am an employee of The O'Mara Law Firm, P.C., 311 E. Liberty Street, Reno, Nevada 89501, and on this date I served a true and correct copy of the foregoing document on all parties to this action by:

[x] in a sealed envelope placed for collection and mailing in the United States Mail, at Reno, Nevada, following ordinary business practices

[ ] Personal Delivery

[ ] Facsimile

[ ] Federal Express or other overnight delivery Messenger Service

[ ] Certified Mail with Return Receipt Requested

[ ] Electronically through the Court's ECF system

[x] Email

addressed as follows:

Frank C. Gilmore, Esq.

The Gilmore Law Group, PLLC

3715 Lakeside Drive

Reno, NV 89509

frank@gilmoregroupnv. corn

Law Offices of Amy N. Tierre, APC

Amy N. Tine, Esq.

3715 Lakeside Drive

Reno, NV 89509

amy@amytirrelaw.com

DATED: April 4, 2025.

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VALERIE WETS

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