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 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 on Friday. "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.

Source: Courthouse News Service