Opinion
B233270
02-07-2012
NAKE M. KAMRANY, Plaintiff and Appellant, v. HAFIZAH SHAHRYAR, Defendant and Respondent.
Nake M. Kamrany, in Pro. Per., for Plaintiff and Appellant. Cypress, LLP, Caroline H. Mankey and Hyura E. Choi, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC107538)
APPEAL from a judgment of the Superior Court of Los Angeles 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 first amended complaint was sustained 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 partnership agreement. Mr. Shahryar gave plaintiff periodic 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 demurrer 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 demurrer is sustained, we determine whether the complaint 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. (Isakoolian v. Issacoulian (1966) 246 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; Stafford v. Ballinger, supra, 199 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. (Bono v. Clark, supra, 103 Cal.App.4th at p. 1420; Isakoolian v. Issacoulian, supra, 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; People ex rel. Lungren v. Superior Court, 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.