Filed 2/4/20 Jogani v. Hansa Investments, Inc. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

RAJESH JOGANI,

Cross-complainant and

Appellant,

v.

HANSA INVESTMENTS, INC. et al.,

Cross-defendants and

Respondents.

B292456

(Los Angeles County

Super. Ct. No. BC290553)

APPEAL from an order of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Reversed.

Browne George Ross, Peter W. Ross and Charles Avrith for Cross-complainant and Appellant.

Ecoff Campain & Tilles, Lawrence C. Ecoff and Alberto J. Campain for Cross-defendants and Respondents.

 

INTRODUCTION

In 2015, Rajesh Jogani (Rajesh) alleged in a cross-complaint that he entered into an oral partnership agreement with his four brothers, Haresh Jogani (Haresh), Chetan Jogani (Chetan), Shailesh Jogani (Shailesh), and Shashikant Jogani (Shashikant), to invest in real property. The cross-complaint also asserted claims against the Joganis’ nephew, Pinkal Jogani (Pinkal), who Rajesh alleges is the nominal owner of Hansa Investments (Hansa)—one of six companies established to hold the partnership’s real estate. Rajesh sought dissolution of the partnership and distribution of its assets.

Hansa and Pinkal (collectively, the Hansa Cross-defendants) moved for judgment on the pleadings. They contended Rajesh’s cross-complaint was barred by the doctrine of judicial estoppel and by the statute of limitations because, in 2004 and 2011, Rajesh signed declarations in which he expressly disavowed any interest in a partnership with Haresh. The trial court found no judicial estoppel because Rajesh’s declarations had not been filed on his behalf in court. The trial court did rely on the declarations, however, to find the cross-complaint time-barred as they indicated Rajesh was on notice in 2004 that Haresh denied the existence of the alleged partnership.

Rajesh timely appealed, and for the reasons set forth below, we reverse.

BACKGROUND

We recently addressed similar judicial estoppel and statute of limitations issues raised by Haresh and Pinkal in Jogani v. Jogani (Oct. 3, 2019, B288037) [nonpub. opn.] [2019 WL 4878870], mod. Oct. 30, 2019 (Jogani VIII). We accordingly quote from Jogani VIII’s recitation of the facts alleged in Rajesh’s cross-complaint—allegations which we take as true for purposes of considering a motion for judgment on the pleadings—and of the pertinent procedural history.

Rajesh alleges he currently lives in the United Arab Emirates. He alleges that “ ‘years ago’ ” he and three of his brothers—Haresh, Shailesh, and Chetan—“formed a joint venture called the ‘Brothers 4 Joint Venture’ for pursuit of interests in the diamond trade, private and public securities, and real estate. The venture conducted business mostly in the name of Haresh, who owned the largest share and was the de facto managing partner, but the brothers agreed the venture was jointly owned.” (Jogani VIII, supra, 2019 WL 4878870 at p. *1.)

“In 1995, the venture partnered with a fifth Jogani brother, Shashikant, in what the parties refer to as the ‘California Partnership,’ to develop real estate in California.” (Jogani VIII, supra, 2019 WL 4878870 at p. *1.) The California Partnership created a series of companies to hold and manage Brothers 4 Joint Venture’s interest in the partnership, including JK Properties, HK Realty, Hansa, Commonwealth Investments, Mooreport Holdings, and Gilu Investments (collectively, Real Estate Companies). These companies were principally owned by Haresh; however, Hansa was nominally owned by Pinkal, Shailesh’s son (and Rajesh’s nephew).

“Disputes arose, and Shashikant sued his four brothers [and the Real Estate Companies (collectively, Defendants)] in 2003. In 2004, . . . Rajesh [was] dismissed from that lawsuit without prejudice, . . . pursuant to a stipulation between the parties. . . .” (Jogani VIII, supra, 2019 WL 4878870 at p. *2.)

“Eleven years later, in 2015, . . . Rajesh voluntarily submitted to the trial court’s jurisdiction, answered Shashikant’s complaint, and filed cross-complaints against Shashikant, Haresh, Pinkal and related entities.” (Jogani VIII, supra, 2019 WL 4878870 at p. *2.) He filed a second amended cross-complaint in September 2017, asserting claims for declaratory relief, breach of fiduciary duty, breach of contract, and conversion, and seeking dissolution of the California Partnership and an accounting. As relevant to this appeal, Rajesh asserted claims for declaratory relief and breach of fiduciary duty against Hansa and Pinkal, and also claims for accounting and conversion against Pinkal.

In 2018, the Hansa Cross-defendants filed a motion for judgment on the pleadings. The Hansa Cross-defendants argued Rajesh’s second amended cross-complaint was barred by the statute of limitations because he purportedly signed declarations in 2004 and 2011 denying the existence of a California Partnership and because his causes of action against the Hansa Cross-defendants arose from an October 7, 2001 distribution made to Haresh and Shashikant. They also argued he was judicially estopped from raising his claims based on his earlier declaration disclaiming the existence of the California Partnership.

In support of these arguments, the Hansa Cross-defendants sought judicial notice of declarations signed by Rajesh on May 3, 2004 and July 15, 2011. In these declarations, Rajesh declared unequivocally, “I am not now, nor have I ever been, a partner in a partnership . . . that does business involving real estate located in California.” Defendants previously submitted Rajesh’s 2004 declaration in support of their 2007 motion for summary judgment; however, Rajesh had never submitted either the 2004 or the 2011 declaration to the court himself.

Rajesh opposed the motion for judgment on the pleadings, asserting the cross-complaint was not time-barred because nothing within its four corners indicated the date any breaches occurred. As to the October 2001 distribution, Rajesh argued it did not trigger the statute of limitations because, per Brothers 4 Joint Venture’s agreement, the distribution went to Haresh on behalf of the Brothers 4 Joint Venture to reinvest on behalf of the partnership. There was therefore no breach by any party in 2001.

Rajesh also argued that neither the 2004 nor 2011 declarations supported a statute of limitations claim because they had not been properly authenticated, had never been filed in court on his behalf, and could not be considered for the truth of the matters stated in them. The only court filing the Hansa Cross-defendants presented to the trial court containing Rajesh’s 2004 declaration was Defendants’ 2007 motion for summary judgment; there was no indication Rajesh’s 2011 declaration was ever presented to the trial court prior to Rajesh filing his cross-complaint. Rajesh further argued the declarations were signed under pressure from Haresh (who was assuring him the partnership did exist but asking him to sign the declarations just for the sake of the underlying lawsuit initiated by Shashikant), and thus were not undisputed admissions.

The trial court took judicial notice of both declarations. It rejected the application of judicial estoppel because Rajesh never filed the declarations in court or urged reliance upon them. The court granted the motion for judgment on the pleadings without leave to amend on the basis that the declarations showed Rajesh was on notice Haresh disputed the existence of the California Partnership in 2004, and Rajesh’s 2015 cross-complaint was thus untimely and barred by the applicable statute of limitations.

DISCUSSION

Although the Hansa Cross-defendants argued to the trial court the doctrine of judicial estoppel barred Rajesh’s cross-complaint, they abandon that argument on appeal. Accordingly, we address only whether the statute of limitations bars the cross-complaint.

A. Standard of Review

“The standard of review for a judgment on the pleadings is the same as for a demurrer,” namely de novo. (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1312; Wedemeyer v. Safeco Ins. Co. of America (2008) 160 Cal.App.4th 1297, 1302.) “ ‘We treat the pleadings as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” (Estate of Dayan (2016) 5 Cal.App.5th 29, 40.) Ordinarily, we consider “only the face of the pleadings, together with matters subject to judicial notice.” (O’Neil v. General Security Corp. (1992) 4 Cal.App.4th 587, 594, fn. 1.) However, we may also examine evidence outside the pleadings that the trial court considered without objection. (Estate of Dayan, supra, at p. 40; O’Neil, supra, at p. 594, fn. 1.)

B. Timeliness

“ ‘ “Statute of limitations” is the “collective term . . . commonly applied to a great number of acts,” or parts of acts, that “prescribe the periods beyond which” a plaintiff may not bring a cause of action.’ (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395.) A cause of action brought outside an applicable period is time-barred. (Ibid.) The applicable period commences when the cause of action accrues, that is, ‘ “when, under the substantive law, the wrongful act is done,” or the wrongful result occurs, and the consequent “liability arises.” ’ (Id. at p. 397.) ‘An exception to the general rule for defining the accrual of a cause of action . . . is the discovery rule,’ which ‘postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.’ (Ibid.) [¶] ‘[R]esolution of the statute of limitations issue is normally a question of fact.’ (Romano v. Rockwell Internat. (1996) 14 Cal.4th 479, 487 . . . .)” (Jogani VIII, supra, 2019 WL 4878870 at p. *5.)

1. Nothing on the Face of the Cross-complaint

Indicates the Statute of Limitations Has Run

As is the case with a demurrer, a party can bring a motion for judgment on the pleadings if the pleading is, on its face, barred by the statute of limitations. (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440.) The parties agree that all of Rajesh’s causes of action against the Hansa Cross-defendants have between a two- and four-year statute of limitations.

As we stated in Jogani VIII, “nothing on the face of [the] cross-complaint . . . discloses when any wrongful act was done or wrongful result occurred, and thus nothing indicates when liability accrued.” (Jogani VIII, supra, 2019 WL 4878870 at p. *6.) The only two temporal references in the cross-complaint as to the Hansa Cross-defendants are that Pinkal “now” takes the position the California Partnership does not exist and that Pinkal has withdrawn money from Hansa for personal use “within the last several years.”

The absence of any date from which to start the statute of limitations is evident from the allegations underlying all four causes of action brought against the Hansa Cross-defendants. First, Rajesh seeks declaratory relief that the California Partnership exists and is the beneficial owner of Hansa and all the property Hansa owns. As mentioned above, he claims only that Pinkal is “now” asserting otherwise. In his derivative claim for breach of fiduciary duty, Rajesh alleges that “within the last several years,” Pinkal breached his fiduciary duty by conducting the business of Hansa for his own benefit, helping himself to profits, and failing generally to discharge his duties in good faith for the benefit of the company, including withdrawing a large sum of money from Hansa for personal use and transporting it outside of the United States. For causes of action alleging a breach of fiduciary duty, the statute of limitations does not begin to run until the breach is discovered. (See April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 827.) The face of the complaint does not indicate when the breach occurred, or when Rajesh discovered it.

Finally, the conversion and accounting causes of action allege Pinkal has transferred money away from Hansa and seeks an accounting to determine how much. No date is supplied for when the alleged conversion giving rise to a need for accounting occurred; the only time frame given is that Rajesh believes it to have been “within the last several years.” Therefore, no basis exists from the face of the cross-complaint to conclude any of the causes of action are time-barred.

2. Rajesh’s Prior Declarations Did Not Support

Judgment on the Pleadings

The Hansa Cross-defendants argue that the cross-complaint is nevertheless time-barred because Rajesh’s 2004 and 2011 declarations prove he was on notice more than four years before the cross-complaint was filed that Haresh disputed the existence of any partnership agreement. As we concluded in Jogani VIII, the declaration is outside the cross-complaint and not subject to being considered for the truth of its contents. (See Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865 [noting that “[a]lthough a court is authorized to take judicial notice in connection with a demurrer [citation], it may not judicially notice the truth of assertions in declarations or affidavits filed in court proceedings” and clarifying that the same applied to a motion for judgment on the pleadings, because “[a] motion on judgment on the pleadings ‘is made on the same grounds, and is decided on the same basis, as a general demurrer’ ”]; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [“Taking judicial notice of a document is not the same as accepting the truth of its contents”].)

While a court may take judicial notice of party admissions made in declarations, that can only be the case “where the admission ‘ “cannot reasonably be controverted,” ’ such as in answers to interrogatories or requests for admission, or in affidavits and declarations filed on the party’s behalf.” (Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 218, fn. 11; see also Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468 [“in order for judicial notice to support a motion for judgment on the pleadings by negating an express allegation of the pleading, the notice must be of something that cannot reasonably be controverted”].) Here, Rajesh’s declarations were not filed on his behalf and are in fact controverted.

To the extent the Hansa Cross-defendants sought to controvert facts set forth in the cross-complaint, the proper vehicle was not the demurrer-like procedure of a motion for judgment on the pleadings. While the Hansa Cross-defendants may be able to make the requisite factual showing at a later point in the proceedings that Rajesh’s claims are time-barred, the trial court erred in relying on the declarations to grant judgment on the pleadings.

DISPOSITION

The order granting the motion for judgment on the pleading is reversed. Rajesh is to recover his costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.