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Court of Appeal:
Sanction in Civil Case May Be Based on Criminal Conduct
Plaintiff Who Conspired to Kidnap Defendant Is Subject to Monetary Penalty Under CCP §128.5, Opinion Says
By a MetNews Staff Writer
A monetary sanction was properly imposed on a plaintiff in a civil case based on his entering into a conspiracy to have the defendant kidnapped, taken to Mexico, and either murdered or intimidated, Div. One of the Fourth District Court of Appeal has held, but it reversed the $200,000 award based on a lack of a showing that a loss in that amount had been incurred.
The plaintiff, Salam Razuki, sued over an alleged sapping by defendants of profits from their marijuana-sales venture. Defendant Ninus Malan is the man Razuki admittedly targeted for a kidnapping, apparently out of exasperation over the litigation.
Unknown by Razuki was that the man who was hired to commit the misdeeds was an informer.
Justice Martin N. Buchanan said in Thursday’s unpublished opinion that San Diego Court Judge Eddie C. Sturgeon, though justified in finding Razuki’s conduct to be sanctionable, abused his discretion in setting the amount of the penalty “in the absence of any showing” that Malan’s attorney fees were, in the language of Code of Civil Procedure §128.5(f)(2), “incurred as a direct result” of proscribed litigation conduct.
Wording of Statute
That portion of §128.5 says, in part:
“An order for sanctions pursuant to this section shall be limited to what is sufficient to deter repetition of the action or tactic or comparable action or tactic by others similarly situated….[T]he sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the action or tactic described in subdivision (a).”
Subd. (a) provides:
“A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay….”
The trial court was given the choice, on remand, of ordering that sanctions be awarded to the Superior Court or handed over to Malan, after a finding as to his actual financial detriment stemming from plaintiff Razuki’s wrongdoing.
Appellant’s Contention
Razuki argued in his opening brief on appeal:
“The Legislature did not contemplate or, presumably, intend that Section 128.5 would allow a party to bring quasi-criminal charges against their opponent in civil court.
“Case law also suggests that CCP § 128.5 wasn’t intended to apply to alleged criminal action of a party….
“Section 128.5 was designed to allow Courts to protect their dockets from frivolous filings. It was not designed for the Court to make criminal findings that are adjacent to civil litigation.”
Rejecting Razuki’s view, Buchanan declared that “the plain language of the statute does not preclude sanctions for conduct just because it may also be criminal.”
He explained:
“We conclude that criminal conduct can logically fall under the umbrella of sanctionable bad faith conduct if it is done with an improper motive of harassing an opposing party. There is nothing in the language of section 128.5 that categorically exempts criminal behavior from serving as grounds for sanctions. In fact, it would be illogical if acts done in extreme bad faith—such as forming a conspiracy to kidnap and murder or intimidate a party opponent—were not sanctionable merely due to their criminal nature.”
Not Limited To
Sec. 128.5(b)(1) says that sanctionable “ ‘[a]ctions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.”
Razuki asserted on appeal:
“Although the language of this definition is somewhat inclusive in nature, the legislative history of CCP § 128.5 shows it was intended to be of a more limited scope. CCP § 128.5 was initially passed because the Legislature recognized California courts did not have inherent authority to sanction parties and attorneys for bad faith conduct.”
Buchanan responded:
“We are not persuaded. In describing the kinds of bad faith actions or tactics that are punishable by sanctions, the statutory phrase ‘including, but are not limited to’ in the definition is indicative of enlargement, not restriction….And while unnecessary and harassing filings may constitute one form of sanctionable conduct, we decline to adopt Razuki’s interpretation and construe section 128.5 so narrowly as to make the phrase ‘but are not limited to’ into surplusage.”
The jurist added:
“Our conclusion is also supported by the fact that section 128.5, subdivision (e), expressly excludes ‘disclosures and discovery requests, responses, objections, and motions’ from categories of behavior that are sanctionable under the statute. If the Legislature intended to exclude criminal behavior from section 128.5’s application, it could have done so.”
Sufficiency of Evidence
Razuki argued that the evidence was insufficient to support an award under §128.5. Buchanan disagreed, saying:
“Malan’s own description of his experience in protective custody, and the effects the ordeal had on his mental and physical health, support a finding that he experienced Razuki’s conduct as harassment even though the kidnapping conspiracy was aborted by law enforcement. The totality of the evidence was sufficient to support the trial court’s finding that Razuki engaged in bad faith actions or tactics for the sole purpose of harassing an opposing party.”
Buchanan did agree with the appellant that substantiation was not provided as to the reasonabless of the $200,000 award, and noted that it appeared that amount was set because it represented the extent of funds Razulu had in a trust account.
“In the absence of evidence connecting the $200,000 award to Razuki’s sanctionable conduct, we conclude the court abused its discretion and the award to Malan must be vacated.”
The case is Razuki v. Malan, D082560.
In separate litigation, Malan has sued Razuki based on the effort to kidnap and possibly kill him. (See accompanying story.)
Razuku on Nov. 1 2022 pled guilty in the U.S. District Court for the Southern District of California to conspiring to kidnap Malan and on Feb. 9. 2023, Judge Cathy Ann Bencivengo sentenced him to seven years in prison.
★★★★
Man Who Tried to Have Partner Kidnapped Can’t Avoid Civil Suit
SAN DIEGO (CN)—A man sentenced to seven years in prison for conspiring to hire a hitman to kidnap and potentially assassinate his former business partner has tried to argue that his victim’s lawsuit should be dropped because the victim was already in FBI protective custody when he learned about the plot against him.
“Malan was never aware of a threat until he was apprehended,” argued Shawheen Khodapanah of Wingert Grebing Brubaker & Walshok LLP in San Diego Superior Court’s Central Courthouse. “There is no cognizable harm.”
Ninus Malan, the plaintiff in the case, had been a business partner of Salam Razuki, the defendant, since 2009, including in several cannabis dispensaries and ventures.
In 2018, Razuki sued Malan in another lawsuit over stakes in some $40 million in assets tied to a San Diego dispensary and production facilities. Malan filed a countersuit.
Instead of waiting for the lawsuits to make their way through the courts, Razuki hired goons to first intimate Malan to drop his suit, steal his mail, and harass employees and customers at a restaurant he owned.
When that didn’t seem to work, Razuki and two associates plotted to have Malan kidnapped and killed in Mexico.
The plan had one small hitch: the hitman they hired was an FBI informant.
On the day Razuki paid the informant the full $2,000 for the murder—half before and half after Razuki was told Malan was killed—the FBI took Malan and his family into protective custody.
Two of Razuki’s associates were also arrested by the FBI on the same day. Razuki was picked up the following day.
All three pleaded guilty to felony counts of conspiracy to kill, kidnap, or maim an individual. Razuki was sentenced to 84 months in prison in 2023.
In 2019, Malan filed a civil suit against Razuki, claiming that his scheme violated the Bane Act, a California law that makes it unlawful to interfere with a person's constitutional rights by force or threat of violence.
Malan also claims Razuki engaged in unlawful business practices, intentional infliction of emotional distress, and negligence.
Razuki filed a demurrer motion to strike the Bane Act claim because Malan wasn’t aware of the plot to kill him until after the plot had been foiled by the FBI, he claims.
“But they weren’t all in custody by the time he heard,” said Superior Court Judge Michael Smyth.
Khodapanah said that was true, but two of Razuki’s associates were in custody, and any reasonable person would feel safe taking into account that Malan and his family were also in FBI’s protective custody at the same time.
“Any reasonable person would be in fear of their life or intimidation in this circumstance,” retorted James Carraway of Gomez Trial Attorneys.
Razuki’s lawyers, he added, were “Monday morning quarterbacking.”
In a tentative ruling, Smyth found that Malan claims that he was aware of the plot against his life before Razuki was taken into custody, which, at this stage of the case, supports his Bane Act claim.
"That these attempts allegedly failed to intimidate plaintiff is irrelevant since the test is 'whether a reasonable person, standing in the shoes of the plaintiff, would have been initiated by the actions of the defendants and have perceived a threat of violence,'" Smyth wrote.
“A reasonable person would have been intimidated by the alleged conduct and perceived a threat of violence,” he added.
At the end of the hearing, Smyth confirmed his tentative ruling, denying Razuki’s demurrer.
Malan is asking the court to grant him damages.
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