Kamrany v. Shahryar
Filed 2/7/12 Kamrany v. Shahryar CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
NAKE M. KAMRANY,
Plaintiff and Appellant,
v.
HAFIZAH SHAHRYAR,
Defendant and Respondent.
B233270
(Los Angeles
County
Super. Ct.
No. SC107538)
APPEAL from
a judgment of the Superior Court
of
County, Gerald Rosenberg, Judge. Reversed.
Nake M.
Kamrany, in Pro. Per., for Plaintiff and Appellant.
Cypress,
LLP, Caroline H. Mankey and Hyura E. Choi, for Defendant and Respondent.
I. INTRODUCTION
Plaintiff,
Nake M. Kamrany, appeals from a judgment entered after a demurrer
dismissal. The first amended complaint
was brought against defendant, Hafizah Shahryar, individually and as the
personal representative of the Estate of Ishaq Shahryar and the trustee of the
Ishaq M. Shahryar Trust. Judgment was
entered in defendant’s favor after the demurrer on the
without leave to amend on laches grounds.
II. PROCEDURAL HISTORY
A. The Complaints
The
complaint was filed on April 9, 2010. The first amended complaint was filed on August 24, 2010. The first amended complaint alleges plaintiff
and Ishaq Shahryar, who is now deceased, grew up together in Kabul,
Afghanistan. The two moved to Los
Angeles as young men.
Plaintiff studied energy issues and authored a book on alternative
energy sources. Plaintiff encouraged
Mr. Shahryar to form a solar energy business. Mr. Shahryar did not have sufficient assets
to form the business with plaintiff, who was more financially successful.
On June 15, 1971, plaintiff and
Mr. Shahryar entered into an oral partnership agreement for the purpose of
forming Solec, a solar energy business.
The oral partnership agreement was confirmed in writing but plaintiff
was unable to find the original copy.
However, unsigned copies of the agreement and an addendum dated June 15, 1971, were attached as
exhibits to the first amended complaint.
Plaintiff also attached to the first amended complaint a declaration
from a former employee, Gretchen Wernett Pffefer. Ms. Pffefer declared she typed the
agreement in 1971 and witnessed its execution.
The terms of the partnership agreement were: Mr. Shahryar would manage and run the business;
plaintiff would provide $25,000; if the original business was bought out, the
proceeds would be reinvested in another solar energy venture; and ownership of
the business was 51 percent for Mr. Shahryar and 49 percent for plaintiff. Without plaintiff’s investment,
Mr. Shahryar would not have been able to start the business. As a result of plaintiff’s investment,
Mr. Shahryar’s estate and defendant have very substantial assets.
Plaintiff
further alleges that Mr. Shahryar formed and ran Solec pursuant to the
oral updates on the business. The
updates were provided from its inception until Mr. Shahryar’s death on April 12, 2009. Mr. Shahryar requested defendant not be
informed of plaintiff’s interest in the business. Defendant was not advised of plaintiff’s
interest in the partnership during Mr. Shahryar’s lifetime. Plaintiff and Mr. Shahryar discussed the
possibility of dissolving the partnership but such never occurred. Plaintiff considered his investment was long
term, the business would continue to grow, and would be used as a retirement
fund. Plaintiff did not need to draw
from the investment for the duration of the partnership. Solec was “bought out†and Mr. Shahryar
used the proceeds to form another energy company, Sun King Solar, Inc.
On February 24, 2010, plaintiff filed a
creditor’s claim with defendant as the personal representative of
Mr. Shahryar’s estate. The lawsuit
followed defendant’s rejection of the claim.
In response to a demurrer to the original complaint, the first amended
complaint explained that the action was not barred by laches. Plaintiff alleges that there was no
unreasonable delay to assert the claim which resulted in prejudice to an
adverse party. Plaintiff alleges in the
first amended complaint: “Plaintiff’s
cause of action, for dissolution of partnership, did not accrue until after the
decedent’s death, in 2009. Plaintiff
does not believe or allege that any cause of action occurred prior
thereto.†The first amended complaint
seeks declaratory and injunctive relief, an accounting, dissolution and winding
up the partnership.
B. The Demurrer
Defendant
demurred to the first amended complaint on two grounds. First, defendant asserted all of plaintiff’s
claims were barred by the doctrine of laches.
Second, defendant argued the injunctive relief cause of action request
was purely a remedy and not a proper claim.
The demurrer relied on a number of extraneous matters which were retrieved from Internet sources
including Wikipedia, for which judicial notice was requested. Among the facts were: Solec was founded and run by
Mr. Shahryar; Mr. Shahryar was a prominent member of the Los Angeles
Afghan community; Mr. Shahryar was the former Afghan Ambassador to the United
States; and Solec was sold to two Japanese
companies, Sanyo and Sumitomo, in a widely publicized transaction in 1994.
The trial
court ruled: “The alleged agreement was made in 1971. The company was sold to Japanese companies in
1994. Plaintiff waits to assert his
claim until [one year] after his alleged partner died in 2009.†The trial court sustained the demurrer to the
first amended complaint without leave to amend on the ground the action was
barred by the doctrine of laches.
Plaintiff filed this timely appeal.
III. DISCUSSION
A. Standard Of Review
The Supreme
Court has defined our task as follows:
“On appeal from a judgment dismissing an action after sustaining a
without leave to amend, the standard of review is well settled. We give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context. [Citation.]
Further, we treat the demurrer as admitting all
material facts properly pleaded, but do not assume the truth of contentions,
deductions, or conclusions of law.
[Citations.] When a
states facts sufficient to constitute a cause of action. [Citation.]
And when it is sustained without leave to amend, we decide whether there
is a reasonable possibility that the defect can be cured by amendment: if it
can be, the trial court has abused its discretion and we reverse.†(City of Dinuba v. County of Tulare
(2007) 41 Cal.4th 859, 865; People ex
rel. Lungren v. Superior Court
(1996) 14 Cal.4th 294, 300.) But,
plaintiff has the burden of demonstrating the manner in which the first amended
complaint might be amended to cure the defects.
(Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081; Hendy v.
Losse (1991) 54 Cal.3d 723, 742; Goodman
v. Kennedy (1976) 18 Cal.3d
335, 349.)
B. The Laches Defense
1. Overview
As a
general rule, laches must be pleaded as an affirmative defense. (San
Bernardino Valley Audubon Society v. City
of Moreno Valley (1996) 44 Cal.App.4th 593, 608; Epperson v. Rosemond (1950) 100 Cal.App.2d 344, 345.) However, when a complaint has included
allegations that disclose laches will bar recovery, the defense may be asserted
by a general demurrer. (
Cal.App.2d 225, 229; Stafford v.
Ballinger (1962) 199 Cal.App.2d 289, 296.)
Our Supreme Court has held:
“[T]he affirmative defense of laches requires unreasonable delay in
bringing suit ‘plus either acquiescence in the act about which plaintiff
complains or prejudice to the defendant resulting from the delay.’ [Citation.]
Prejudice is never presumed; rather it must be affirmatively demonstrated
by the defendant in order to sustain his burdens of proof and the production of
evidence on the issue. [Citation.] Generally speaking, the existence of laches
is a question of fact to be determined by the trial court in light of all of
the applicable circumstances, and in the absence of manifest injustice or a
lack of substantial support in the evidence its determination will be
sustained. [Citations.]†(Miller
v. Eisenhower Medical Center (1980)
27 Cal.3d 614, 624; see also Johnson v.
City of Loma Linda (2000) 24 Cal.4th 61, 68.)
2. Delay was not established on the face of the
first amended complaint.
The first
amended complaint alleges: in 1971,
plaintiff entered into a partnership agreement; they agreed the solar energy
company would be operated by Mr. Shahryar; the agreement provided for
ownership interests of 51 percent for Mr. Shahryar and 49 percent for
plaintiff; Mr. Shahryar had complete control over the management of the
partnership; Mr. Shahryar had authority to reinvest proceeds from any sale
in a subsequent solar energy company; the partners understood that plaintiff’s
investment was long-term so the partnership was not dissolved prior to
Mr. Shahryar’s death; Mr. Shahryar reinvested the proceeds after
Solec was sold; and Mr. Shahryar’s reaffirmed the partnership agreement
until his death in 2009. If the
allegations of the first amended complaint are true, any cause of action for
the funds would not have accrued until one of two things occurred. The statute of limitations would not have
accrued until Mr. Shahryar’s death.
Or the statute of limitations could accrue upon his repudiation of the
agreement sometime prior to April 2009.
(Code Civ. Proc., §§ 337, subd. (1); 339, subd. (1).) Plaintiff alleges that Mr. Shahryar
never repudiated the partnership agreement.
The first
amended complaint does not disclose any facts showing plaintiff should have
acted sooner. Mr. Shahryar
allegedly continued to affirm the partnership agreement until his 2009
death. The first amended complaint was
filed within one year of Mr. Shahryar’s death during which time defendant
rejected plaintiff’s partnership claims.
Thus, the first amended complaint does not disclose an unreasonable
delay in asserting a claim once defendant, but not Mr. Shahryar,
repudiated the partnership agreement.
3. Prejudice to defendant was not shown on the
face of the complaint.
Defendant
also asserts that allowing the complaint to proceed after the delay will cause
her substantial prejudice. Defendant
reasons the original complaint should have been filed before Mr. Shahryar
died. She argues he is the only witness
who can refute the first amended complaint’s allegations. And she asserts the documents attached to the
complaint are inadmissible and insufficient to establish the partnership
agreement.
Defendant
is correct that the death of an important witness may constitute
prejudice. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1419-1420;
Cal.App.2d at p. 296.) However, the
death of a witness is only one factor which may be considered in determining
whether laches is present. (
246 Cal.App.2d at p. 230.) Moreover,
prejudice is never presumed. And
defendant has failed to show how Mr. Shahryar’s death will prejudice her
given the allegations in the first amended complaint and the judicially noticed
materials. (Miller v. Eisenhower Medical Center, supra, 27 Cal.3d at pp. 624; Bono
v. Clark, supra, 103 Cal.App.4th
at pp. 1419-1420.) Obviously, some
evidentiary issues will arise to the extent that there was an alleged
partnership investment over 40 years ago.
But, defendant has not established that she has no other witnesses,
records or other evidence to dispute the partnership contention. Defendant’s arguments concerning the
inadmissibility of the documents attached to the first amended complaint are
irrelevant. The allegations of the first
amended complaint are deemed admitted and the papers attached to it failed to
prove as a matter of law no partnership existed. (City
of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865;
supra, 14 Cal.4th at p. 300.)
IV. DISPOSITION
The
judgment is reversed. Plaintiff, Nake M.
Kamrany, is awarded his costs on appeal from, defendant, Hafizah Shahryar,
individually and as the personal representative of the Estate of Ishaq Shahryar
and the trustee of the Ishaq M. Shahryar Trust.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
MOSK, J.
KRIEGLER,
J.
