Partielly v. Afshani

Filed 3/24/06 Partielly v. Afshani CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Appeal from a judgment and consolidated appeal from a post-judgment order of the Superior Court of Los Angeles County, Rita J. Miller, Judge. Judgment reversed and appeal of post-judgment order dismissed.

Golob, Bragin & Sassoe, P.C., Dennis E. Golob for Plaintiffs and Appellants.

McDougal and Associates, Donald C. McDougal, Jr., and Norman Paul Breen for Defendants and Respondents.

I. INTRODUCTION

This is a dispute between family members over ownership of a commercial property in downtown Los Angeles. Plaintiffs contend they were partners with certain of the defendants regarding ownership and operation of the property, through one or more limited partnerships. According to plaintiffs, in 1994 certain of the defendants became aware of a valuable business opportunity that rightfully belonged to the partnership and, instead of pursuing and obtaining the opportunity on behalf of plaintiffs and the partnership, those defendants conspired with others to exploit the opportunity for their own benefit, and to the exclusion of plaintiffs. Plaintiffs further contend they were unaware of the business opportunity or of its usurpation by defendants, and that defendants concealed their misconduct from plaintiffs for several years. As a result, plaintiffs claim they were deprived of their ownership interest in the property. They also contend that, when they finally discovered defendants' wrongful actions, certain of the defendants induced plaintiffs to forbear from filing suit based on repeated promises that the dispute would be resolved within the family.

The trial court granted defendants' motion for summary judgment, concluding there was no fiduciary relationship that extended to the business opportunity in issue, and that any claims based on the alleged usurpation of that opportunity were time-barred in any event. The trial court also concluded that the alleged oral agreement to forbear from filing suit was barred by the statute of frauds.

Plaintiffs appeal from the judgment, contending there are triable issues of material fact concerning whether there was a partnership that extended to the business opportunity in issue. Plaintiffs contend, for similar reasons, that there are triable issues of material fact concerning whether there was a continuing fiduciary relationship between them and certain of the defendants, whether that relationship excused plaintiffs' failure to discover the wrongful conduct in issue and tolled the running of the applicable statutes of limitation, and whether defendants are estopped by their conduct or agreement from relying on the statute of limitations. Plaintiffs also contend that because of their performance, the statute of frauds is not applicable to one of the alleged agreements upon which they sue and rely in connection with their claim as to the non-applicability of the statute of limitations.

In a consolidated appeal, defendants challenge the trial court's post-judgment order denying their motion for attorney fees. They contend they were entitled to rely on the attorney fees provision in one of the limited partnership agreements, even though they were successful in disproving the existence of any such agreement with plaintiffs in the trial court.

We hold that there are material factual disputes on the issue of whether a partnership or confidential relationship existed that included the business opportunity in issue and legally established a fiduciary relationship. Because the trial court's judgment as to 16 of the 17 causes of action pled was predicated on its conclusion that no such partnership or confidential relationship existed, we reverse as to those claims. We also find that there is a triable issue of material fact concerning whether plaintiffs fully performed under the alleged forbearance agreement and established an exception to the bar of the statute of frauds. We therefore reverse the judgment as to that remaining cause of action for breach of the forbearance agreement as well. Because we reverse the judgment upon which the trial court's post-judgment order denying attorney fees was based, we dismiss defendants' appeal from that order as moot.

II. FACTUAL BACKGROUND[1] AND CONTENTIONS

A. The Broadway Trade Center Partnership

The real property in issue, commonly known as the Broadway Trade Center (the BTC Property), is located at 826-832 South Hill Street in downtown Los Angeles.[2] From at least 1988 to March 18, 1994, Broadway Trade Center, a California limited partnership (BTC Partnership), owned and operated the BTC Property. In October 1988, plaintiffs Alber Partiyeli and Parvaneh Partielly, husband and wife, became limited partners in BTC Partnership, holding a 9.5 percent limited partnership interest.

B. The Union First Trust Deed

As of 1988, a first position trust deed in favor of Union Federal Bank (Union) encumbered the BTC Property, securing Union's $16 million loan to BTC Partnership (Union First Trust Deed). At the time it conveyed the Union First Trust Deed, BTC Partnership did not hold title to all of the fee estates within the parameters of the â€