Case Number: BC540242 Hearing Date: June 16, 2016 Dept: 50

Superior Court of California
County of Los Angeles
Department 50

NAZILA SARMAST,
Plaintiff,
vs.
HOSSEIN HAGHIGHI, et al.
Defendants. Case No.: BC 540242
Hearing Date: June 16, 2016

Hearing Time: 8:30 a.m.

[TENTATIVE] ORDER RE:

A. DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO PAY SANCTIONS
B. DEFENDANTS’ MOTION RE STATUTE OF LIMITATIONS

Plaintiff Nazila Sarmast (“Plaintiff”) filed this action on March 24, 2014 against Defendants Hossein Haghighi, Meshkat Haghighi, Fariheh Haghighi Kamros, and Sima K. Ganji (collectively “Defendants”). Trial is scheduled to commence on June 20, 2016.
Motion to Dismiss for Failure to Pay Sanctions

Defendants move to dismiss this action due to Plaintiff’s failure to pay monetary sanctions. It appears that Defendants agreed to take this motion off calendar.

Motion re Statute of Limitations

At the May 18, 2016 final status conference, the Court ordered the parties to brief the issue of the statute of limitations. Defendants filed a brief that is fashioned as a motion for dismissal based upon the statute of limitations. Plaintiff filed an opposition to the motion to dismiss as well as a statute of limitations brief.

Plaintiff argues that Defendant Meshkat Haghighi waived the statute of limitations affirmative defense because she did not plead it in her answer to Plaintiff’s Second Amended Complaint. However, Meshkat Haghighi did in fact plead an affirmative defense based on the statute of limitations. (Answer to SAC, at p.7.) The Court notes that page 7 is missing from the copy of the Answer attached to Plaintiff’s opposition as Exhibit B; the copy filed with the Court has page 7.

An action for taking, detaining, or injuring goods or chattels is subject to a three-year statute of limitations. (CCP §338(c).) Similarly, the statute of limitations for fraud is three years. (CCP § 338(d).) A fraud claim does not accrue until the discovery of the facts constituting the fraud. (Id.) A cause of action for conversion generally accrues on the date of the wrongful taking, even if the owner is ignorant of the wrong committed. (Naftzger v. American Numismatic Soc. (1996) 42 Cal.App.4th 421, 429.) However, there is an exception to this rule where defendant fraudulently conceals the conversion. In such a case, the cause of action accrues when the owner discovers or should have discovered the conversion. (Id.)

Here, Plaintiff’s claims are premised on a fraudulent scheme by Defendants, wherein Defendants falsely represented to Plaintiff that they would keep her jewelry safe and instead took the jewelry and sold it to Defendant Sima K. Ganji. (See SAC ¶¶28-29, 39.) Plaintiff alleges that she did not discover the sale of the jewelry to Ganji, and hence Defendants’ fraudulent scheme, until October 14, 2013. (SAC ¶42.) There appears to be a dispute as to when exactly Plaintiff discovered the theft of the jewelry. Plaintiff states in her brief that she did not come to learn that Ganji was in possession of the jewelry until late 2011. (Plaintiff’s Brief 12:2-3.) Defendants contend in their brief that Plaintiff discovered the theft in Fall 2012. (Defendants’ Brief 5:18.) Neither party has provided the Court with evidence on this point. In any event, if Plaintiff can establish that she did not discover the theft of the jewelry and Defendants’ fraudulent conduct, until after March 24, 2011, then it appears that Plaintiff’s claims will not be time-barred.

Assuming that Plaintiff’s claims did accrue more than three years prior to the filing of this action, the Court notes that there are factual disputes concerning how long the statute of limitations was tolled due to Hossein Haghighi’s absence from California (See CCP §351); and whether Hossein Haghighi’s threats caused Plaintiff to delay filing suit, thus estopping Defendants from raising the delay as a defense. (See John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445.)

Based on the briefing presented, the Court is not persuaded that Plaintiff’s claims are time-barred. The parties may present evidence on this issue at trial. Defendant’s motion to dismiss is denied.