Judge: Kevin C. Brazile, Case: 22STCV11308, Date: 2023-01-27 Tentative Ruling

Hearing Date: January 27, 2023

Case Name: Heidari Law Group, P.C. v. Najafi

Case No.: 21STCV23966

Matter: Motion to Compel Deposition

Moving Party: Heidari Law Group, P.C. and Saman Ryan Heidari

Responding Party: (1) Nina Najafi, Eric Bryan Seuthe, and Law Offices Of Eric Bryan Seuthe

& Associates

(2) Mesriani & Associates, Sanaz Imani, and Rodney Mesriani

Notice: OK

Ruling: The Motion to Compel is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On July 27, 2022, Plaintiffs Heidari Law Group, P.C. (“HLG”) and Saman Ryan Heidari filed the operative First Amended Complaint (“FAC”) against Defendants Nina Najafi, Eric Bryan Seuthe, Law Offices Of Eric Bryan Seuthe & Associates, Mesriani & Associates, Sanaz Imani, and Rodney Mesriani for (1) breach of contract, (2) declaratory relief, (3) conspiracy to induce breach of contract, (4) breach of the covenant of good faith and fair dealing, (5) fraud, (6) conspiracy to commit fraud, (7) conversion, (8) conspiracy to commit conversion, (9) intentional interference with contract, (10) conspiracy to commit interference with contract, (11) constructive trust, (12) defamation per se, (13) malicious prosecution, (14) abuse of process, and (15) violation of the UCL.  

Among other things, Plaintiffs allege that they were counsel for Najafi in a lawsuit relating to an automobile collision (“Underlying Action”) and that Najafi—after obtaining new counsel—failed to pay a portion of her settlement proceeds to Plaintiffs as required by their retainer agreement.

On May 16, 2022, Nina Najafi filed the Second Amended Cross-Complaint (“SACC”) against HLG and Heidari for (1) legal malpractice, (2) breach of fiduciary duty, and (3) fraud.  Najafi alleges that Cross-Defendants bungled her settlement.

On August 9, 2022, Heidari and HLG filed a Cross-Complaint against Mesriani & Associates and Rodney Mesriani for (1) indemnity, (2) partial indemnity, (3) equitable indemnity, and (4) contribution.  

On October 19, 2022, Najafi, Seuthe, and Law Offices of Eric Bryan Seuthe & Associates filed an anti-SLAPP motion as to the FAC’s claims for malicious prosecution and abuse of process.  That same day, Defendants Rodney Mesriani and Mesriani & Associates filed a separate anti-SLAPP motion as to the same causes of action.  These anti-SLAPP motions are currently scheduled for February 14, 2023.

HLG and Heidari now seek to compel the deposition of Najafi because (1) the Court previously ordered that Najafi’s deposition take place within ten days of Heidari’s deposition, which has now occurred, and (2) for the purposes of the pending anti-SLAPP motions, Plaintiffs need evidence as to Defendants’ motives for filing Najafi’s Cross-Complaint herein.  

Nina Najafi, Eric Bryan Seuthe, and Law Offices Of Eric Bryan Seuthe & Associates

have filed an opposition.  Mesriani & Associates, Sanaz Imani, and Rodney Mesriani have filed a separate opposition.  Opposing parties contend that Najafi’s deposition is not permitted during the stay of discovery stemming from their pending anti-SLAPP motions.  

With respect to Plaintiffs’ first argument, the Court’s prior order is not determinative, given that a stay of discovery was not in place at the time.  

Code Civ. Proc. § 425.16(g) provides, “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.”

In order to establish “good cause” within the meaning of Code Civ. Proc. § 425.16(g), the plaintiff must show that “a defendant or a witness possesses evidence needed by the plaintiff to establish its probability of prevailing on a claim.”  (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 572).  Whether good cause has been shown is within the discretion of the Court.  (See Lafayette Morehouse, Inc. v. Chronicle Publ'g Co. (1995) 37 Cal.App.4th 855, 868.) 

“[T]he fact evidence necessary to establish the plaintiff's prima facie case is in the hands of the defendant or a third party goes a long way toward showing good cause for discovery. But it is not the only factor. The trial court should consider whether the information the plaintiff seeks to obtain through formal discovery proceedings is readily available from other sources or can be obtained through informal discovery.  The court should also consider the plaintiff's need for discovery in the context of the issues raised in the SLAPP motion.”  (The Garment Workers Ctr. v. Superior Court (2004) 117 Cal.App.4th 1156, 1162.)

Claims for malicious prosecution and abuse of process are at issue for the anti-SLAPP motions.  “[A] plaintiff must plead and prove three elements to establish the tort of malicious prosecution: a lawsuit (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice.”  (Nunez v. Pennisi (2015) 241 Cal. App. 4th 861, 872–73 (internal quotations marks omitted).)  

“[T]o establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.”  (State Farm Mut. Auto. Ins. Co. v. Lee (2011) 193 Cal.App.4th 34, 40.)

Here, there is no need for discovery relating to Defendants’ state of mind for the malicious prosecution claim, which is otherwise defective.  As discussed, a malicious prosecution claim requires that the underlying action have terminated in favor of the plaintiff.  For a termination to be in favor of the plaintiff, the termination must reflect on the merits of the suit.  (Jaffe v. Stone (1941) 18 Cal.2d 146, 151-152.)  Plaintiffs’ claim is premised on Defendants’ filing of Najafi’s Cross-Complaint herein (FAC ¶ 139); however, critically, the Cross-Complaint has not been terminated in Plaintiffs’ favor and is instead pending.  That is, to the extent Plaintiffs cannot establish that the Cross-Complaint was terminated in their favor, they do not need evidence on the issue of malice.  (See The Garment Workers Ctr. v. Superior Court (2004) 117 Cal.App.4th 1156, 1162 [“Even if it looks as if the defendant's actual malice may be an issue in the case, if it appears from the SLAPP motion there are significant issues as to [other elements]—issues which the plaintiff should be able to establish without discovery—the court should consider resolving those issues before permitting what may otherwise turn out to be unnecessary, expensive and burdensome discovery proceedings.”].)

The abuse of process claim is also defective.  This claim is similarly premised on the filing of Najafi’s Cross-Complaint.  (FAC ¶ 146.)  However, “the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.”  (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169.)  To the extent the abuse of process claim is otherwise defective, there is no need for discovery on the issue of ulterior motive.  

In sum, because “good cause” has not been shown for Najafi’s deposition (Code Civ. Proc. § 425.16(g)), the Motion to Compel is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.