Noushfar v. Shayesteh

Filed 7/10/09 Noushfar v. Shayesteh CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

This is the third appeal in a civil RICO action by plaintiff Mike Noushfar against defendant Iraj Shayesteh. Noushfar appeals from a judgment for Shayesteh. Noushfar contends that when he was trying the case in propria persona, both the court and opposing counsel had a duty to give him procedural advice. He also contends the court erred in finding the action barred by the statute of limitations. We find no error and affirm the judgment.

I. FACTS

We need not discuss the convoluted procedural history of this case. We quote essentially uncontested facts from a prior opinion (Noushfar v. Shayesteh et al. (June 28, 2002, A097262) [nonpub. opn.] (Noushfar I)) for background, noting that the facts we quote are either contained in, or are consistent with, the allegations of Noushfars pleadings.

[I]raj Shayesteh, Kamran Shayesteh, and Abraham Shayesteh are brothers who owned and operated the Galleria de Farsh, a Burlingame purveyor of rugs and carpets, including Persian carpets and handmade rugs from China, India and Pakistan. At least as early as 1992, Iraj, Kamran and Abraham allegedly conspired together and formed a complicated scheme to smuggle Iranian carpets into the United States through Canada, in violation of an executive order prohibiting the importation of Iranian products. (Noushfar I, supra, at p. 2.)

At some time in 1992, the Galleria de Farsh hired [Noushfar] to be its internal accountant and insurance broker, with additional duties including driving [a] truck for deliveries and selling on the floor to customers. At the request of Iraj, who is allegedly the head of the Galleria business, [Noushfar] made three truck trips to Seattle to pick up loads of carpets which had apparently been smuggled in from Vancouver. [Noushfar] claims he was unaware the carpets were of the prohibited Iranian variety, and thought he was just a driver and simply carrying out the wishes of his employer. [Noushfar] alleges Iraj and his brothers set him up as a fall guy to cover their participation in a smuggling operation. (Noushfar I, supra, at p. 2.)

The smuggling operation was uncovered in 1993. [Noushfar] and several others were arrested. [Noushfar] was charged and convicted of illegal smuggling. His conviction was reversed by the Ninth Circuit, and the charges were eventually dismissed. Kamran and his wife were convicted of RICO violations and other related offenses. (Noushfar I, supra, at p. 2.)

In April 1997, [Noushfar] filed a civil RICO complaint against Iraj, Kamran, and Abraham, seeking damages for his incarceration and trial. The complaint, filed in Alameda County Superior Court, sought money damages under RICO, as well as damages based on theories of negligence, false imprisonment, and negligent and intentional infliction of emotional distress. . . . (Noushfar I, supra, at p. 2.)

After pretrial motions and the filing of a First Amended Complaint, [Noushfars] suit against Iraj and his brothers was set for trial at least three times, but the trial did not go forward on the assigned dates. . . . [] On April 6, 2001, trial in the Alameda County civil RICO action commenced before Judge David E. Hunter. On May 7, 2001, after nine days of trial, based on developments during trial, Judge Hunter granted [Noushfars] motion to add two new defendants: the Estate of Sharbnoo Shayesteh, Irajs mother, and [respondent] Iraj in his capacity as administrator of Sharbnoo Shayestehs estate. (Noushfar I, supra, at pp. 2-3.)

On August 14, 2001, [Noushfar] filed a Second Amended Complaint adding three causes of action alleging the fraudulent conveyance of assets. [Noushfar] alleged that in the fall of 1992, Iraj, Kamran and Abraham fraudulently conveyed the assets of the Galleria, including its inventory of carpets, to Sharbnoo Shayesteh, who was then living in Iran. [Noushfar] alleged the assets totaled over $1,970,000. The adding of the new defendants and the new allegations to the litigation was based on Irajs trial testimony about the transfer to his mother. (Noushfar I, supra, at p. 3, fn. omitted.)

As we noted in our prior opinion, Sharbnoo Shayesteh died June 13, 1999, in Tehran, Iran. Her estate was probated in San Mateo County. Iraj was appointed special administrator of her estate. (Noushfar I, supra, at p. 3, fn. 2.)

In our second appeal in this matter (Noushfar v. Shayesteh et al. (May 16, 2003, A099106) [nonpub. opn.] (Noushfar II), we affirmed an order sustaining a demurrer to the three additional causes of action, finding them barred by the statute of limitations governing lawsuits against an estate. (Noushfar II, supra, at pp. 5-9.) Thus, the operative pleading in this matter, on which the case was tried, is the first amended complaint, which alleges seven causes of action: three RICO violations, negligence, false imprisonment, and intentional and negligent infliction of emotional distress.

During trial, when Noushfar was in propria persona, Noushfar moved to reinstate Kamran Shayesteh as a defendant. (Kamran had apparently been dismissed from the action because of a bankruptcy petition, which itself was later dismissed.) The trial court denied the motion to reinstate. Subsequently, Noushfar twice applied to the court for an order to serve Kamran by publication. The court denied both applications.

After the close of testimony, defendant Iraj Shayesteh moved for nonsuit or directed verdict on several grounds, including the statute of limitations. Noushfar opposed the motion on the sole ground of statute of limitations.

The court issued a tentative ruling granting the motion. The court ruled that the latest date for the statute of limitations to commence was March 17th, 1994, the date the Federal jury in the underlying Federal criminal case returned its verdict and [Noushfar] was last in custody. The court further ruled that state statute of limitations governed the RICO causes of action, and that the applicable limitations period was three years for actions upon a liability created by statute. (Code Civ. Proc.,  338, subd. (a).) The court also ruled the remaining causes of action (negligence, false imprisonment, negligent and intentional infliction of emotional distress) were governed by the one-year period of Code of Civil Procedure section 340. Since Noushfars initial complaint was not filed until April 22, 1997, the court found all causes of action time-barred.

The court denied a motion for reconsideration and entered judgment for Shayesteh.

II. DISCUSSION

Noushfar contends that the court and opposing counsel had a duty to advise him, as a propria persona litigant, regarding an alternative way to serve Kamran. There was no such duty. Propria persona litigants are treated the same as those represented by counsel. Pro. per. status provides no basis for preferential consideration. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)

Noushfar also contends the trial court erred by finding his action barred by the statute of limitations.

The court found that the causes of action accrued on March 17, 1994, when the trial concluded and Noushfar was released from custody (apparently on bail pending appeal). Since Noushfars suit sought damages for his incarceration and trial, this is the proper date. (Cf. Wallace v. Kato (2007) 549 U.S. 384, 388-389 [at common law, statute of limitations for false imprisonment begins to run when alleged false imprisonment ends].) Noushfar contends the accrual date was the date the charges were eventually dismissed, November 13, 1996. But Noushfar erroneously relies on Heck v. Humphrey (1994) 512 U.S. 477 (Heck), which is a decision interpreting Title 42 United States Code section 1983. That case is distinguishable because it involves the concept of favorabletermination of an allegedly illegal criminal action, akin to the tort of malicious prosecution. (Heck, supra, at pp. 484-487.)

The court found that state limitations periods govern RICO actions filed in state court, citing Bunnell v. Department of Corrections (1998) 64 Cal.App.4th 1360 (Bunnell). The trial court was correct. Bunnell holds that in a state-court action under a federal statute, the state statute of limitations governs in the absence of a statute of limitations in the federal statute. (Bunnell, supra, at pp. 1368-1371.) RICO has no statute of limitations for actions brought under its civil enforcement provision. (Agency Holding Corp. v. Malley-Duff & Assocs. (1987) 483 U.S. 143, 146 (Agency Holding).) Thus, state statute of limitations apply. The trial court properly concluded the three-year period of Code of Civil Procedure section 388, subdivision (a) applied to Noushfars RICO causes of action.

The court also properly concluded that a one-year limitations period applied to the false imprisonment cause of action. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions,  549, p. 699.) The negligence and distress causes of action are governed by a two-year period, not a one-year period (id. at  559, pp. 710-711;  574, p. 731), but that does not render the trial courts result in error.

Relying on Agency Holding, Noushfar contends RICO actions are governed by a four-year limitations period. But Agency Holding only applies to RICO actions filed in federal court. (Agency Holding, supra, 483 U.S. at pp. 148-150.)

III. DISPOSITION

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Graham, J.*

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* Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.