Case Number: JCCP4694 Hearing Date: April 09, 2014 Dept: 310

FIREMAN’S FUND INSURANCE CASES
Case No.: JCCP4694
Hearing Date: 4/9/14
Department 310

MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS OF THIRD PARTY MICHAEL MOORE

TENTATIVE

Grant motion to compel production of business records from Michael Moore, subject to a protective order designating the documents as “confidential” and stating that said documents are to be used solely for purposes of the instant litigation.

DISCUSSION

In these coordinated cases, three insurers – Fireman’s Fund Insurance Company (“FFIC”), The National Surety Corporation (“NSC”), and American Insurance Company (“AIC”) (collectively, “the Insurers”) allegedly issued property/liability policies to two entities owned and operated by Raymond Arjmand, Front Gate Plaza, LLC, and County Fair Fashion Mall, LLC. Both entities – Front Gate Plaza and County Fair Fashion Mall submitted claims to the Insurers following a winter storm, and then sued the Insurers for allegedly underpaying the claims.

Front Gate sued FFIC and NSC in Los Angeles Superior Court in Lancaster on April 21, 2008 (Front Gate Plaza, LLC v. Fireman’s Fund Insurance Co., et al., LASC Case No. MC019168 (“Front Gate Action”). County Fair sued FFIC and AIC in Yolo County on January 8, 2009 (County Fair Fashion Mall, LLC v. Fireman’s Fund Insurance Co., et al., Case No. CV-09-000008 (Yolo County Superior Court) (“County Fair Action”), Yolo County Case No. CV-09-000008). In both actions, the Insurers cross-claimed against the Plaintiff, Mr. Arjmand, and several other entities and persons for common law fraud and violations of RICO, claiming that Plaintiff submitted false and fraudulent claims and conspired with the cross-defendants (including Jeff Davani, PolyHelp Construction, Inc., Robert Barton, Bob Barton Adjusting, Inc. dba Barton Consulting, R&A Associates, Inc., Raymond Arjmand individually and as trustee for the Arjmand Family Trust, and Primero Management, Inc.) to commit insurance fraud.

Additionally, the Insurers brought a qui tam action (People of the State of California ex rel. Fireman’s Fund Insurance Co., et al. v. Front Gate Plaza, LLC, et al., (the “IFPA Action”) LASC Case No. LC093216), alleging that Front Gate, County Fair Fashion Mall, Raymond Arjmand, and others submitted or conspired to submit false and fraudulent insurance claims to FFIC, NSC, and AIC stemming from the winter storm, causing alleged damage to various properties owned by some of the Defendants. The Front Gate action and County Fair action were coordinated with the qui tam IFPA action in January of 2012.

In 2009, Sunil Chand, an employee of Primero Management, Inc. (which FFIC alleges manages the Front Gate Plaza and County Fair Fashion Mall), along with another Primero employee (Faye Ajdari) sued Arjmand and Primero alleging, inter alia, that Arjmand defrauded insurance companies, violated various statutes and regulations, and retaliated against his employees when they objected. Michael Moore represented both Chand and Ajdari in their actions, which ultimately settled.

On November 8, 2013, FFIC served on Moore a subpoena requesting non-privileged documents relating to the Chand and Ajdari matters. FFIC also served consumer notices on Chand and Ajdari. Neither Chand nor Ajdari served objections to the subpoena. Moore has objected to the subpoena, and has refused to produce any responsive documents. FFIC has filed the instant motion to compel Moore to produce documents pursuant to the subpoena.

FFIC issued a subpoena on the Law Offices of Michael Moore to compel production of business records. Mr. Moore served as counsel for Sunil Chand and Firoozeh Ajdari in an employment lawsuit against Primero Management, Inc. and Raymond Arjmand. The subpoena seeks the following documents:

RFP No. 1: All pleadings filed in the matter of Ajdari v. Arjmand, et al, Case No. BC480775 (Los Angeles County Superior Court).

RFP No. 2: All DOCUMENTS that YOU obtained through formal or informal discovery requests RELATED TO the matter of Ajdari v. Arjmand, et al, Case No. BC480775 (Los Angeles County Superior Court).

RFP No. 3: All DOCUMENTS that YOU produced pursuant to formal or informal discovery requests RELATED TO the matter of Ajdari v. Arjmand, et al, Case No. BC480775 (Los Angeles County Superior Court).

RFP No. 4: All transcripts of depositions, and exhibits attached thereto, taken in the matter of Ajdari v. Arjmand, et al, Case No. BC480775 (Los Angeles County Superior Court).

RFP No. 5: All COMMUNICATIONS between YOU or anyone acting on YOUR behalf on the one hand and ARJMAND OR HIS ENTITIES, Primero Management, Inc., or anyone acting on their behalf on the other hand, RELATED TO the settlement of the action entitled Ajdari v. Arjmand, et al, Case No. BC480775 (Los Angeles County Superior Court).

RFP No. 6: Any settlement agreement or agreements reached in the action entitled Ajdari v. Arjmand, et al, Case No. BC480775 (Los Angeles County Superior Court).

RFP No. 7: All pleadings filed in the matter of Chand v. Arjmand, et al, Case No. LC088828 (Los Angeles County Superior Court).

RFP No. 8: All COMMUNICATIONS between YOU or anyone acting on your behalf on the one hand and ARJMAND OR HIS ENTITIES, Primero Management, Inc., or anyone acting on their behalf on the other hand, RELATED TO the settlement of the action entitled Chand v. Arjmand, et al, Case No. LC088828 (Los Angeles County Superior Court).

RFP No. 9: Any settlement agreement or agreements reached in the action entitled Chand v. Arjmand, et al, Case No. LC088828 (Los Angeles County Superior Court).

Mr. Moore has lodged objections to the subpoena. These objections can be broken down into the following categories: 1) the requests are oppressive and unduly burdensome (and that the documents are equally available to FFIC through the Superior Court or through written discovery to Raymond Arjmand and/or Primero Management); 2) the documents sought are protected by attorney-client and work product privilege; and 3) the documents cannot be produced, as they are protected by the confidentiality provision of the settlement agreement entered into between Ajdari and Arjmand/Primero, and between Chand and Arjmand/Primero. The parties unsuccessfully attempted to meet and confer.

None of Mr. Moore’s objections have merit. First, with respect to the “oppressive and unduly burdensome” objection, Moore apparently admitted during the meet and confer process that he has the requested documents saved electronically and could quickly stamp and produce them. [See Reply Declaration of Nicholas Gregory, ¶3.] Further, as to the assertion by Mr. Moore that the documents are “equally available” to FFIC, FFIC represents that these documents are not all available through other parties or the courts. FFIC cites as examples the deposition transcripts, exhibits, and settlement agreements not filed with the courts. To the extent the documents are available, their production would not be unduly burdensome. Many of the documents from the underlying litigation are not available to FFIC through resort to the court files in those cases (since the documents would encompass non-filed discovery responses and other documents not appearing in the respective court files in the underlying Chand and Ajdari matters).

As to the second objection (that the documents seek attorney-client and work product privileged materials), the document requests set forth above, on their face, do not seek any information that would fall under either the attorney-client or work product privilege. The pleadings, deposition transcripts, or documents produced or obtained through discovery in the underlying cases do not encompass any attorney-client communications, nor are they protected work product. Accordingly, the “privilege” objections are not persuasive.

Third, the argument that the documents cannot be produced pursuant to the confidentiality provision in the underlying settlement agreements is not a basis to withhold them. As FFIC notes, copies of the settlement agreements have not been submitted to the Court by Mr. Moore. There is no authority which allows a non-party to shield such documents.

Moreover, if Mr. Chand or Ms. Ajdari objected to the documents following service of the subpoenas, CCP §1985.3(g) requires them to have served their objections in writing. FFIC represents that it did not receive any such objections in writing following service of the subpoenas (it appears that FFIC properly served the subpoenas on Mr. Chand and Ms. Ajdari under CCP §1985.3(b)(1)).

Notably, there is no objection that the documents are not relevant to the instant case. The document requests are relevant to FFIC’s claims and defenses in the litigation, which include allegations that Defendant Arjmand and the entities controlled by him violated RICO and the California Insurance Frauds Prevention Act.

Mr. Moore may designate these documents as “confidential” and produce them, subject to a protective order that said documents are to be used solely for purposes of the instant litigation (or as otherwise stipulated by the parties). Such an order resolves Mr. Moore’s concerns about potentially violating the settlement agreement entered into between Mr. Chand and Ms. Ajdari on the one hand, and Mr. Arjmand and Primero Management on the other.