Free Response in Opposition to Motion - District Court of Arizona - Arizona

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David M. Bass* (State Bar No. 117199) Michael J. Gulden* (State Bar No. 243383) DAVID M. BASS & ASSOCIATES 1900 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Telephone: (310) 789-1152 Facsimile: (310) 789-1149 Email: [email protected] *Admitted Pro Hac Vice Attorneys for Defendants FARID MESHKATAI and ANITA KRAMER MESHKATAI UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation, and FIDELITY EXPRESS NETWORK, INC., a California corporation, Plaintiffs, vs. COLIN H. FRIEDMAN, individually and as trustee of the Friedman Family Trust UDT, dated July 23, 1987; HEDY KRAMER FRIEDMAN, individually and as trustee of the Friedman Family Trust UDT, dated July 23, 1987; FARID MESHKATAI, an individual; and ANITA KRAMER MESHKATAI, individually and as trustee of the Anita Kramer Living Trust, dated July 23, 1987, Defendants.

Case No. CV 03-1222 PHX RCB [Assigned to Hon. Robert C. Broomfield] FARID AND ANITA MESHKATAI'S RESPONSE TO PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR AN ORDER TO SHOW CAUSE RE: CIVIL CONTEMPT FOR VIOLATIONS OF THE COURT'S ORDERS TO YARIV ELAZAR [Evidentiary Objections to the Declaration of Janice M. Kroll in Support of Plaintiffs' Reply filed concurrently herewith]

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Case 2:03-cv-01222-RCB Document 228 Filed 08/19/2008 Page 1 of 7 CAUSE RE: CIVIL CONTEMPT FOR ALLEGED VIOLATIONS OF THE COURT'S ORDERS TO YARIV ELAZAR
FARID AND ANITA MESHKATAI'S RESPONSE TO PLAINTIFFS' REPLY IN SUPPORT MOTION FOR AN ORDER TO SHOW

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I.

INTRODUCTION. In their Reply (the "Reply") to Farid and Anita Meshkatais' Opposition (the

"Opposition") to Plaintiffs' Motion for an Order to Show Cause re: Civil Contempt (the "Motion") for alleged violations of the Court's Orders to Yariv Elazar ("Elazar"), Plaintiffs concede that the evidence presented in the Motion fails to demonstrate the violation of (i) the vacated January 22, 2007 Order issued by this Court regarding 29 categories of documents (the "January 22, 2007 Order"), and (ii) the Preliminary Injunction issued by the Court in the action entitled Fidelity National Financial, Inc., et al. v. Colin H. Friedman, et al, Central District of California, Case No. CV06-4271 CAS (JWJx). (See Reply, 2:9.5-17.5.1) Plaintiffs narrow their claims in the Reply to supposed violations of the October 2006 Subpoena to Elazar (the "Elazar Subpoena") and the February 2007 Order to Elazar to produce documents (the "Elazar Order"). Plaintiffs repeat the same inflammatory accusations in the Reply as presented in the Motion, but again fail to offer any evidence -- let alone the clear and convincing evidence required -- that the Meshkatais violated any Court Order. Indeed, as evidenced herein and in the Opposition, the evidence -- and Plaintiffs' own accusations -- contradict their claims. Accordingly, the Motion fails as a matter of law and should be denied.

II.

PLAINTIFFS' CLAIMS ARE NONSENSICAL AND CONTRADICTED BY THE EVIDENCE. A. Plaintiffs' Claims Fail Against the Meshkatais; Elazar Fully Complied with the Elazar Subpoena and Elazar Order.

Plaintiffs' assertion that Farid and Anita Meshkatai (the "Meshkatais") violated the Elazar Subpoena and Elazar Order is based upon the insupportable premise that "it is undisputed that the subpoena was violated because without excuse Elazar did not
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Plaintiffs' Reply is not properly formatted requiring the Meshkatai's to refer to lines in the Reply in half numbers.

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produce Eliani documents in response to the subpoena." (Reply, 2:25.5-27.5.) As demonstrated in the Opposition -- and confirmed by Plaintiffs in the Motion -- Elazar fully complied with the Elazar Subpoena and the Elazar Order. Specifically, the Elazar Order states that the "parties should arrange for Elazar to produce the requested documents at a reasonable time and place in Arizona." (Elazar Order, Docket No. 142 at 8:3-5.) Plaintiffs confirm in their Motion that "on February 22, 2007, Hyman produced documents on behalf of Elazar." (Motion, 9:21-22 and Exhibit 6.) The "evidence" Plaintiffs appear to offer in support of their contention that the Meshkatais somehow "aided the [alleged] violations" by Elazar are the unsupported (and plainly false) allegations that (i) "Elazar did not give any documents to Hyman, Hyman obtained the documents from the Meshkatais and Trust" (Reply, 6:20-22.); and (ii) the "Meshkatais further aided the violations by producing their own documents in response to the Court's order and omitting" a copy of the lien produced by Elazar at his May 14, 2008 deposition (Reply, 6:7-8). As set forth herein and in the Opposition, Plaintiffs' conclusory allegations are contradicted by the evidence and Plaintiffs' own conflicting claims. B. Elazar Provided all Documents to Allen Hyman for Production to Plaintiffs; the Meshkatais were Not Involved in the Document Production.

Plaintiffs assert both that (i) "Hyman produced documents on behalf of Elazar (Motion, 9:21-22), and (ii) Elazar "never gave Hyman any documents." (Reply, 10:45.) In the Reply, Plaintiffs present yet another scenario: "Elazar did not give any documents to Hyman, Hyman obtained the documents from the Meshkatais and Trust." (Reply, 6:20-22.) Plaintiffs' claims are contradictory and insupportable. The uncontradicted evidence confirms that the Meshkatais did not make the production of documents for Elazar. Specifically, the evidence shows that after speaking with Hyman, Elazar delivered all of his documents to Hyman (see Declaration of Michael J. Gulden attached to the Opposition ("Gulden Decl."), ¶ 4), who arranged for the production of documents by Elazar. (See Motion, Exhibits 1 and 2.) As detailed
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above, Plaintiffs confirm in their Motion that Elazar complied with the Elazar Subpoena and Elazar Order. (See Motion, 9:21-22 and Exhibit 6.) He did so by having Hyman deliver the complete document production to Plaintiffs in February 2007. C. Plaintiffs' Claim that the Meshkatais Produced Documents in Response to the Elazar Subpoena and Elazar Order, but "Omitted" the Lien Release is a Red Herring.

Plaintiffs also offer as "evidence" of violations of the Elazar Subpoena and Elazar Order by the Meshkatais the allegation that the "Meshkatais further aided the violations by producing their own documents in response to the Court's order and omitting" a copy of the lien produced by Elazar at his May 14, 2008 deposition (Reply, 6:7-8). Plaintiffs' contention does not support a finding of contempt. The Elazar Subpoena and Elazar Order were issued to Elazar -- not to the Meshkatais. Accordingly, the Meshkatais had no duty to produce any documents in response to the Elazar Subpoena or Elazar Order. If, as Plaintiffs claim, Hyman included documents from the Meshkatais in the February 22, 2007 production of Elazar's documents to Plaintiffs, it was as a courtesy to Plaintiffs -- not an obligation in response to the Elazar Subpoena or Elazar Order. Further, Plaintiffs fail to offer any evidence that the Meshkatais ever had a copy of the alleged release in their possession, or that they intentionally concealed the alleged release. The evidence establishes that no documents were omitted by Elazar from his production of documents in February 2007, or by the Meshkatais in response to the January 22, 2007 Order (which was vacated in favor of the identical Order issued in the action entitled Fidelity National Financial, Inc., et al. v. Colin H. Friedman, et al., Case No. CV 00-06902-GAF (RZx) (the "California Collection Action")). The grievance raised by Plaintiffs appears to have arisen from Elazar telling Plaintiffs' counsel prior to the commencement of his deposition that he only recently located the alleged lien release, which he produced to Plaintiffs at his May 14, 2008 deposition. (Gulden Decl., ¶ 5.) The fact that Elazar produced the alleged release at his May 14, 2008 deposition ///
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contradicts Plaintiffs' allegations of a scheme to "omit" and "conceal" documents from Plaintiffs. Moreover, on July 11, 2008, the Court in the California Collection Action issued an Order directing the parties to file an updated Chart of allegedly missing documents reflecting the status of the document production in response to the 29 categories of documents identified by Plaintiffs in the January 22, 2007 Order. (See Request for Judicial Notice ("RJN") filed concurrently with the Opposition, Exhibit 16.) As evidenced in the updated Chart filed on July 28, 2008, all documents regarding Eliani, LLC and Elazar were produced to Plaintiffs, or were not in the Meshkatais' possession. (See RJN, Exhibit 17, Document Category nos. 75-80.) As detailed in the Declaration of Farid Meshkatai filed in the California Collection Action in February 2008, the only documents regarding Eliani, LLC in Farid Meshkatai's possession were check copies and a Term Sheet between Eliani, LLC and Yariv Elizar, which were produced to Plaintiffs in February 2007. (See Motion, Exhibit 25.)

III.

ADDITIONAL INACCURATE REPRESENTATIONS MADE BY PLAINTIFFS IN THE REPLY. As detailed in the Opposition, Plaintiffs' Motion is based upon an incomplete

record and incomplete presentation of Elazar's deposition testimony. Plaintiffs inaccurately characterize the facts and events to enhance the Motion, and fail to present any admissible evidence of any violations of any Order by the Meshkatais. In addition to repeating the prior inaccurate assertions of "evidence" in support of the Motion (which have been addressed in the Opposition at 6:17-11:25), Plaintiffs include in the Reply additional inaccurate representations, as detailed in the following chart. /// /// ///
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Elazar's Statement that he had Delivered his Documents to Hyman Plaintiffs' Contention "The record shows, however, that there were no breaks after the testimony at issue." (Reply, 7:25.2-8:1.) "There was therefore no break when Evidence Disproving Plaintiffs' Contention Plaintiffs contradict their own assertion when they subsequently concede that there was in fact a break after Elazar's testimony regarding the production of documents to Hyman. (See Reply, 8:15-16.) Plaintiffs' claim is also contradicted by their assertion

Elazar could have contradicted in the Motion that "on February 22, 2007, Hyman his testimony about giving documents to Hyman." (Reply, 8:17-19.) (See also Declaration of Janice M. Kroll in support of the Reply, ¶ 4.) produced documents on behalf of Elazar." (Motion, 9:21-22 and Exhibit 6.) Plaintiffs' allegation is also contradicted by the Meshkatais' counsel, who witnessed Elazar inform Plaintiffs' counsel that he had in fact delivered his documents to Hyman. (See Gulden Decl., ¶ 4.)

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The Deposition of Elazar Plaintiffs' Contention "The record shows, however, that [Meshkatais'] counsel could and did clarify the record." Plaintiffs claim, in essence, that the Meshkatais' counsel had an opportunity to clarify the record because they informed Plaintiffs' counsel during the deposition that an exhibit was incorrectly marked. (Reply, 8:22-23.) Evidence Disproving Plaintiffs' Contention The fact that Plaintiffs' counsel permitted the Meshkatais' counsel to observe that Plaintiffs had improperly marked an exhibit in no way supports Plaintiffs' claim that Meshkatais' counsel had a full and fair opportunity to clarify the record. Indeed, the evidence establishes that Plaintiffs' counsel refused to permit the Meshkatais' counsel to question Elazar to clarify the record. (See Gulden Decl., ¶ 3, and Exhibit A thereto.)

IV.

CONCLUSION. Plaintiffs have failed to offer clear and convincing evidence of any violations of

the Elazar Subpoena or Elazar Order by the Meshkatais. Accordingly, this Court should deny Plaintiffs' Motion. Dated: August 19, 2008 DAVID M. BASS & ASSOCIATES

By: David M. Bass Attorneys for Defendants FARID MESHKATAI and ANITA KRAMER MESHKATAI