Jogani v. Jogani CA2/3 ( 2021 )

Filed 8/26/21 Jogani v. Jogani CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
SHAILESH JOGANI, B302360
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC564146
v.
HARESH JOGANI et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark V. Mooney, Judge. Affirmed.
Ecoff Campain & Tilles, Lawrence C. Ecoff and Alberto J.
Campain for Plaintiff and Appellant.
Horvitz & Levy, Jason R. Litt, Rebecca G. Powell;
The Cameron Law Firm and Parry G. Cameron for Defendants
and Respondents.
_________________________
INTRODUCTION
Shailesh Jogani appeals from the judgment entered in
favor of his brother Haresh Jogani and the entities1 he formed
to amass a billion-dollar California real estate portfolio. Shailesh
alleged Haresh and their two younger brothers entered an oral
partnership agreement in 1995 to pool their funds from their
various businesses to enable Haresh to purchase a portfolio
of properties for their collective benefit.2
In 2003, their older brother Shashikant (Shashi) sued them
claiming a 50 percent partnership interest in the real estate
portfolio that he had helped create for the brothers’ partnership
(Shashi action). The brothers allegedly had purchased Shashi’s
underwater properties to help him. Allegedly at Haresh’s
direction, Shailesh and his brothers filed declarations in the
Shashi action denying the existence of any partnership with
Shashi or Haresh. Haresh nevertheless allegedly told them he
would distribute the proceeds from the partnership’s real estate
portfolio after the Shashi action resolved. The Shashi action
continued, and Shailesh finally sued Haresh and his companies
in November 2014. He claimed he was owed $250,000,000.
1 Shailesh also sued J.K. Properties, Inc., H.K. Realty, Inc.,
Commonwealth Investments, Inc., Mooreport Holdings Limited,
and Gilu Investments Limited (defendant companies or Haresh’s
companies). They and Haresh (defendants) are joint respondents
on appeal.
2 We have followed the parties’ lead and refer to the five
Jogani brothers by their first names for clarity. We intend
no disrespect by doing so.
2
Defendants asserted Shailesh’s claims were barred by
the statute of limitations. After a jury agreed, the court entered
judgment in favor of Haresh and his companies. Shailesh
contends the judgment must be reversed on three grounds:
(1) the special verdict form was fatally defective because it did
not ask the jury to make specific findings on all material facts
required to resolve defendants’ statute of limitations defense;
(2) the trial court improperly excluded audio recordings of
Haresh admitting to the partnership and to pay its proceeds
after the Shashi action ended; and (3) the trial court erroneously
sustained defendants’ demurrer to Shailesh’s fraud cause of
action. Finding no prejudicial error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
The five Jogani brothers, from oldest to youngest, are:
Shashi, Shailesh, Haresh, Rajesh, and Chetan. They were
born and raised in India and speak Gujarati. Shailesh does
not understand or speak English.3
1. The Jogani brothers’ businesses
The Jogani brothers’ father wanted his sons to act as
partners throughout their lives, sharing the proceeds of their
business ventures with each other. As each brother came of age,
he learned the diamond business. In the early 1970s, Shailesh
and Haresh, who were in their early twenties at the time, formed
the diamond company Dialust. They had a written partnership
agreement. Shailesh testified Dialust was part of the brothers’
“ ‘global partnership.’ ”
Shashi was neither interested in the diamond business
nor in partnering with his brothers in a global business venture.
3 During the trial, Gujarati interpreters interpreted for
Shailesh and sometimes for Rajesh and Chetan. Haresh testified
in English, but an interpreter was there if needed.
3
He let his brothers know he wanted any money he made to be
his alone, and he moved to the United States where he invested
in California residential real estate.4
In the meantime, Rajesh and Chetan also learned the
diamond business. At some point Rajesh joined Shailesh and
Haresh at Dialust. Haresh retired from Dialust in 1978; his
name was removed from the written agreement. He then moved
to Israel and started the diamond company Jogdiam Israel.
Chetan trained with Haresh in Israel between 1982 and 1986
and then moved to Belgium to start Jogdiam Belgium BVBA,
and Shailesh and Rajesh stayed in India to run Dialust.
Shailesh, Rajesh, and Chetan testified the four brothers
ran their separate companies as a global family partnership,
sharing the profits among them.5 Haresh testified there was
no global partnership—the brothers ran their companies
separately and did not share profits.
2. Formation of the alleged real estate partnership
In the early 1990s, Shashi began experiencing financial
difficulties—his properties were overleveraged and the economy
had slowed down. After one of Shashi’s apartment buildings
collapsed during the 1994 Northridge earthquake, he was
on the verge of financial ruin. Shashi traveled to India to ask
his family for help. His brothers agreed to help him.
In spring 1995, Haresh and Rajesh met with Shashi in
Los Angeles and discussed investing in the California real estate
4 Accordingly, we exclude Shashi when we refer to the
brothers or their partnership/businesses.
5 They testified the brothers directed the income from their
separate global businesses to Jogdiam Israel through various
sub-accounts to take advantage of Israel’s favorable tax laws.
Haresh handled those accounts.
4
market. Shailesh (and his brothers) testified Haresh and Rajesh
reached an agreement on behalf of the four brothers to invest
in the California real estate market with Shashi: Shashi would
hold a 50 percent interest in the real estate portfolio and the four
brothers would collectively hold the other 50 percent interest.6
Under the four brothers’ alleged oral partnership agreement,
Haresh would invest profits from the brothers’ global businesses
to purchase apartment buildings through the defendant
companies. Haresh was the sole shareholder and/or director
of the companies, but they allegedly held “nominal” title to
the properties for the collective benefit of, and as agents for,
the four brothers.
Under their alleged agreement, Haresh managed and
controlled the vast real estate portfolio on the brothers’ behalf.
Shashi recommended the properties Haresh’s companies
should purchase.7 Shailesh’s son Pinkal went to California
around 1996 or 1997 to work for the defendant companies and
learn the “family” real estate business from his uncle Shashi.
Around 1998, they started a property management company that
Haresh’s companies hired to manage their real estate portfolio.
Pinkal also formed a real estate acquisition company with
financial backing from Haresh. Pinkal understood his company
to be part of the family business.
Beginning around 2003, Haresh’s son Jeet started to work
for Haresh’s companies, too; Pinkal and others trained him. Jeet
ultimately became the asset manager for the real estate portfolio.
6 Shailesh testified partnerships are “done orally” in India
“according to Hindu law.” Chetan testified similarly.
7 Haresh testified he paid Shashi as a consultant; Shashi
had no ownership interest in the real estate portfolio.
5
Pinkal’s property management services were terminated in
December 2012.
Haresh testified there was no oral partnership agreement
among the four brothers or with Shashi relating to his real estate
business. Haresh said he started the California real estate
business himself—the defendant companies were his “babies.”
He provided the capital—through his businesses and bank loans
—to purchase the properties.
3. The brothers’ meetings
Shailesh, Rajesh, Chetan, and Pinkal8 testified the four
brothers met twice a year in India over several days to discuss
the status of their global business ventures, including the
performance of the California real estate portfolio. During their
meetings, each brother would circulate financial documents about
their respective businesses. After reviewing the financial reports
for each brother’s business, the brothers would decide where to
invest their profits. The real estate business was very profitable.
The brothers agreed to reinvest the profits from their companies
into the stock market and to build the real estate portfolio.
They did not discuss distributing the profits made through the
real estate portfolio or their global partnership.
Haresh testified the brothers talked about their businesses
generally with each other when their families met in India and
all stayed together, in Rajesh’s words, “under one roof.” They
ran their businesses separately; there was no global family
partnership or partnership in the California real estate.
4. The Shashi action
In February 2003, Shashi sued the four brothers, the
defendant companies, and others in the Los Angeles Superior
8 Pinkal participated in the real estate discussions.
6
Court. He alleged he was entitled to 50 percent of the value of
the California real estate portfolio. Haresh contended Shashi
was a mere consultant and not entitled to anything.
According to the three brothers, when they were all
together in India in 2003, Haresh told them Shashi had sued
them and that he would handle the lawsuit. Haresh allegedly
told the brothers he wanted to teach Shashi a lesson and would
give him his share of the real estate partnership after the case
was over.
In 2004, Haresh allegedly demanded the brothers
sign declarations disavowing the existence of any real estate
partnership and denying any ownership interest in the defendant
companies or they would lose their shares. Shailesh, Rajesh,
and Chetan each filed a declaration in the Shashi action attesting
there was no oral partnership agreement among the brothers
or with Shashi involving California real estate and they had
no ownership or other interest in the defendant companies.9 At
trial, the three brothers admitted they lied in those declarations.
In 2004, according to Shailesh, Haresh told the brothers
he would distribute their shares of the profits from the real estate
portfolio after the Shashi action ended; Shailesh said they
agreed. The three brothers testified Haresh assured them
“many times” during their meetings in India that he would
distribute the real estate profits once the Shashi action ended.
The three brothers also testified that, during their semi-annual
meetings, Haresh repeatedly referred to them as “partners.”
Chetan testified he heard Haresh say many times at their
meetings, “ ‘We are not brothers. We are partners. Talk about
partners. Don’t talk about brothers.’ ”
9 Shashi then dismissed Shailesh, Rajesh, and Chetan from
his lawsuit in 2005.
7
Haresh testified he never referred to his brothers as his
partners after 1978. He also denied that he ever told his brothers
he would divide the profits from the real estate portfolio after
the Shashi action ended.
5. 2010 and later events
In late spring 2010, Shailesh, Rajesh, and Chetan went
to Israel and met with Haresh. The testimony about what
occurred conflicts. Haresh testified the brothers took diamonds
from his company stock in Israel and sent them to Jogdiam
Belgium. Haresh said Shailesh asserted he was Haresh’s partner
and wanted his partnership share. Haresh denied they were
partners. He said the three brothers then became angry and
pushed him into a chair. Chetan and Shailesh, on the other
hand, testified the three brothers went to talk to Haresh about
moving the diamond stock out of Israel to Belgium because
the diamond market had fallen. Chetan and Shailesh denied
any pushing or shoving occurred. Shailesh testified they had
a “ ‘hard discussion.’ ”
Shailesh testified that while in Israel he asked Haresh
for money from the real estate investments.10 He said Haresh
agreed to pay him, but Shailesh admitted he did not receive
his share then.11 Shailesh also testified Haresh never denied
their partnership.
Near this same time, in May 2010, there was an email
exchange between Pinkal and the president of one of Haresh’s
10 Shailesh apparently needed money for a family expense.
11 Shailesh admitted he was aware that, since 1995, Haresh
had never distributed any profits from the real estate portfolio
to him.
8
companies with Haresh, Rajesh, Chetan and others copied.12
In response to an apparent dispute with the president, Pinkal
asserted there were “ ‘four partners[ ] in the company’ ”—Haresh,
Shailesh, Rajesh, and Chetan. Haresh responded, “ ‘What you
have said is absolutely not true. I am the sole director and owner
of H.K. Realty and J.K. Properties.’ ” Pinkal answered, “ ‘It is
absolutely true. . . . On the book you are the sole director and
owner.’ ” Haresh again replied, “ ‘Absolutely not true.’ ” Rajesh
and Chetan did not reply to the exchange.13
Chetan and Shailesh testified that after the 2010 Israel
meeting, through 2012, Haresh continued to tell the three
brothers he would distribute their share of the real estate profits
when the Shashi action resolved.
During this time, Shailesh also was embroiled in a dispute
with Haresh in India. Around 2012, one of Haresh’s diamond
companies sued Dialust, Shailesh, and Rajesh in Mumbai, India
for money owed for a diamond shipment. Shailesh’s and his
brother’s position was that the shipment was part of the family
partnership effort. In this trial, Haresh introduced Shailesh’s
testimony from that matter: Shailesh admitted he was not
a partner or director in any of the defendant companies; and,
12 Pinkal testified he did not copy his father on the email
because Shailesh does not understand English; he does not
have an email address.
13 Pinkal testified Haresh called him right after the email
exchange and asked him why he was “ ‘putting all this stuff
in writing’ ” with the lawsuit going on. Pinkal testified Haresh
reaffirmed, “ ‘Once the case is over, I’m going to give you guys
all the money.’ ” Chetan testified he did not reply to the emails
because Haresh called him and told him not to answer the
e-mails; he would give “ ‘everybody their part.’ ”
9
when asked about his investment in the real estate partnership,
he testified, “ ‘We were moral partners. I was not a financial
partner.’ ”14
Shailesh testified he believed Haresh would distribute the
real estate profits at the end of the Shashi case—which was still
pending—up until January 2013. At that point, Haresh would
not explain to Shailesh why he had fired Pinkal in December
2012. Shailesh then knew Haresh “wasn’t going to give [him]
any money.”
6. Shailesh’s lawsuit
On November 25, 2014, Shailesh filed this lawsuit against
Haresh and his companies for $250,000,000—his alleged share
of the profits from the California real estate investments.
Shailesh’s second amended complaint (SAC), the operative
complaint, alleged causes of action for breach of oral contract,
breach of the covenant of good faith and fair dealing, breach
of fiduciary duty, fraud, accounting, and declaratory relief.
Shailesh had amended his complaint twice after the trial court
sustained defendants’ demurrers to Shailesh’s fraud cause of
action with leave to amend. Defendants filed a third demurrer;
the trial court sustained it without leave to amend as to the
SAC’s fraud cause of action.
a. Bifurcation of statute of limitations defense
Defendants answered the SAC and asserted the statute
of limitations as an affirmative defense. They moved to
bifurcate the trial to have their defense tried before the merits.
Defendants contended Shailesh knew or reasonably should have
known Haresh had disavowed the brothers’ alleged partnership
14 During this trial, Shailesh testified he corrected his answer
to state he was an oral partner. By “ ‘moral partners,’ ” he meant
“ ‘nothing was written down.’ ”
10
before November 25, 2012 and 2011, so the applicable two- and
three-year statute of limitations periods had expired. Shailesh
opposed bifurcation. He argued the statute of limitations did not
begin to run before November 2011 or 2012 because Haresh had
assured Shailesh repeatedly that he would honor the partnership
at the end of the Shashi action and that action had not concluded.
The trial court granted the bifurcation. Shailesh does not
challenge that decision on appeal.
b. Defendants’ motion in limine to exclude recordings
At trial Shailesh sought to introduce “snippets” of five
audio recordings Chetan made on his phone—between 2003
and 2010—of the brothers’ discussions during their semi-annual
meetings in India. In them, Haresh refers to his brothers as
his partners and tells them he will distribute the profits from
the real estate investments at the end of the Shashi action.
Most of the conversations were in Gujarati. At one point, Haresh
apparently can be heard saying in English, “ ‘We are partners,
not brothers.’ ” Shailesh sought to introduce the recordings
to demonstrate the existence of the brothers’ partnership, and
to undermine Haresh’s credibility.
Before trial, defendants had moved in limine to exclude
the audio recordings on the grounds (1) Shailesh could not
adequately authenticate them; (2) they contained inadmissible
hearsay; and (3) Penal Code section 632,15 or public policy,
precluded their admission because Haresh did not consent to
the recordings. Defendants alternatively asked for a hearing
15 Generally, Penal Code section 632 makes recordings of
secretly recorded confidential communications inadmissible
in legal proceedings.
11
under Evidence Code section 402.16 Shailesh opposed the motion,
primarily arguing it was premature and Penal Code section 632
did not apply because the recordings were made in India.
During trial, but outside the presence of the jury, the court
held an evidentiary hearing under section 402 over several court
sessions. Defendants’ expert testified. He had not listened to
or examined the recordings. He testified generally about the
problems that could arise in establishing the chain of custody
of a recording (particularly here where the recordings were not
original and may have been made in India), the need forensically
to examine the recording to verify its authenticity and confirm it
had not been altered, and the importance of the chain of custody
to that determination. He also said a foreign language recording
normally is transcribed in the recorded language first, then
translated into English.
Shailesh’s counsel made an offer of proof as to what Chetan
would say to authenticate the audio recordings. Chetan would
testify he attended the brothers’ meetings in person in India,
and “to help him remember, he would sometimes record these
meetings” with his phone. After recording the meeting, Chetan
transferred the digital recording from his phone’s memory card
to a computer and a USB drive where the recording remained
for some amount of time. After he amassed several recordings,
Chetan apparently gave a copy of them on a USB drive to an
unidentified translator, who translated the recordings from
Gujarati to English and prepared a transcript. The translator
returned the audio recordings and transcript to Chetan, and he
in turn delivered them to his attorney who produced them during
discovery in a related case involving Haresh. Chetan also would
16 Further undesignated statutory references are to the
Evidence Code.
12
testify he did not alter the recordings, he listened to them
and could identify the voices, and they accurately reflected
what was said at the meetings he attended.
In response, defense counsel argued they needed more
information to authenticate the recordings: the dates of each
recording, details about the alleged conversations that were
recorded, the participants and where the conversations took
place, why the original recordings had not been produced,
the location of the memory cards, USB drives, and computers,
and the type of phone used. Counsel also noted the recordings
picked up in the middle of conversations and ended before they
were over; the transcript did not appear to have been translated
by fluent English speakers; and the transcripts acknowledged
periods of silence on the recordings that were “inherently
suspicious.”
Although defendants had not raised it in their motion,
the court found there was “a wealth of [section] 352 issues
in terms of admitting” the recordings. The court voiced its
concerns about the recordings’ authenticity, chain of custody, and
translation, the age of some of the recordings, and California’s
public policy against using surreptitiously recorded evidence.
Nor was the court convinced the recordings would help the jury
decide the issue before it—what Shailesh had reason to know,
and when, about Haresh’s alleged breach—or that their ability
to impeach Haresh was as strong as Shailesh claimed.
For one thing, the jury already had heard from Chetan
and others about what Haresh said during these meetings. If the
recordings were admitted, Chetan would simply be explaining,
“ ‘That’s Haresh speaking.’ ” And, because the recordings were
in Gujarati, it likely would be “impossible” for the jury “to tell
who’s speaking,” particularly as the recordings would be “filtered”
through the interpreters. The jury again would have to “rely[ ]
13
totally on Chetan as to who’s doing the speaking.” In essence,
Chetan would be repeating his earlier testimony.
Shailesh’s counsel argued the jury could hear Haresh
say in English, “We are partners, not brothers,” directly
contradicting his sworn testimony. Because Shailesh did not
speak or understand English, however, the audio recording
of that statement was not probative of what Shailesh knew.
Nevertheless, counsel maintained Haresh’s recorded statements
—referring to the brothers as “partners” and agreeing to
distribute the brothers’ shares in the real estate portfolio after
the Sashi action ended—went to “the heart of the issue of
credibility.” Counsel asserted that, by excluding the recordings,
the court was preventing him from rebutting defense counsel’s
anticipated argument that that the jurors should not credit the
brothers’ testimony. He wanted to argue they needn’t take the
brothers’ word for what Haresh said; they “heard [Haresh’s own]
voice on the tape.” Counsel contended, “The most key piece
of evidence in this case is [Haresh’s] own voice contradicting
himself. What could be more probative than that?”
The court concluded it was “not worth the risk” to admit
the recordings, given they had “all kinds of problems with
the admissibility,” and granted the motion in limine.
c. The special verdict and judgment
The jury returned a special verdict in favor of defendants
on their statute of limitations defense. The special verdict form
posed one question for each cause of action asking the jury to
find whether Shailesh had reason to know “he had suffered
harm relating to the California real estate partnership” as a
result of Haresh’s wrongful conduct on or before November 25,
2012, for Shailesh’s breach of oral contract and breach of the
good faith and fair dealing claims, or on or before November 25,
2011, for the breach of fiduciary duty claim.
14
The court then decided Shailesh’s equitable claims,
finding in favor of defendants on his claim that Haresh should
be estopped from asserting the statute of limitations defense,
as well as on his claims for an accounting and declaratory relief.
The trial court entered its final statement of decision on
August 27, 2019, after rejecting Shailesh’s objections to its
tentative statement of decision. Shailesh does not challenge
these findings. The trial court entered judgment on October 8,
2019, and Shailesh timely appealed. We granted defendants’
motion to augment the record with defendants’ and Shailesh’s
amended proposed special verdict forms.
DISCUSSION
Shailesh contends the judgment should be reversed and
the matter remanded for a new trial on three grounds: the
special verdict form is fatally defective; the trial court abused
its discretion when it excluded the audio recordings of Haresh’s
admissions—to Shailesh’s prejudice; and the trial court erred
in sustaining defendants’ demurrer to the SAC’s fraud cause
of action.
1. Special verdict form
Shailesh contends the special verdict form did not require
the jury to make specific findings on all the issues material to
defendants’ statute of limitations defense and, thus, it does not
support the judgment in defendants’ favor. Shailesh does not
contend the jury’s findings are unsupported by the evidence.
a. Standard of review and applicable law
We review the correctness of a special verdict form de novo.
(Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325 (Saxena).) In
a special verdict, the jury finds facts only, leaving the judgment
to the court. (Code Civ. Proc., § 624.) “The special verdict must
present the conclusions of fact as established by the evidence,
and not the evidence to prove them; and those conclusions of fact
15
must be so presented as that nothing shall remain to the Court
but to draw from them conclusions of law.” (Ibid.)
“A special verdict is ‘fatally defective’ if it does not allow
the jury to resolve every controverted issue.” (Saxena, supra,
159 Cal.App.4th at p. 325.) In other words, “[i]f a fact necessary
to support a cause of action [or affirmative defense] is not
included in . . . a special verdict, judgment on that cause of
action [or defense] cannot stand.” (Behr v. Redmond (2011)
193 Cal.App.4th 517, 531 (Behr) [where complaint alleged
separate causes of action for fraudulent concealment and
misrepresentation, special verdict was insufficient to support
judgment in favor of plaintiff on misrepresentation claim because
form asked if defendant concealed information but not whether
he made an affirmative misrepresentation].) A special verdict
form is not defective, however, merely because it does not ask
the jury to make separate findings on each element of a given
cause of action. (See Babcock v. Omansky (1973) 31 Cal.App.3d
625, 630–631 [interrogatories on separate elements of fraud
not necessary where special verdict form included single question
on ultimate issue of fraud and jury had been instructed on
the elements], superseded on another ground by Civ. Code,
§ 3439.02.)
b. Shailesh has forfeited his challenge to the special
verdict form, and, in any event, it is not fatally
defective
For the first time on appeal, Shailesh contends the trial
court erred by presenting the jury with a special verdict form
that asked only whether Shailesh should have known Haresh’s
wrongful conduct caused him harm outside the statute of
limitations period. He asserts the jury was required to determine
(1) whether Haresh terminated the partnership agreement, and,
16
if so, (2) when he terminated it—issues material to resolving
whether the statute of limitations barred his claims.
In essence, relying on Romano v. Rockwell Internat., Inc.
(1996) 14 Cal.4th 479, Shailesh argues Haresh’s purported
repudiation of the alleged partnership agreement or failure to
distribute the partnership proceeds did not trigger the running
of the limitations period because his performance was not
due until the Shashi action ended. (Id. at pp. 486, 489 [where
promisor repudiates contract, plaintiff may treat repudiation
as an anticipatory breach of the contract and sue immediately
or treat repudiation as empty threat and await time for
performance; thus, statute of limitations period did not begin
to run until employer actually fired plaintiff although it informed
plaintiff two years earlier that he would be fired].) Because that
action had not concluded, and Haresh had ongoing contractual
obligations, Shailesh argues his claims could not have accrued
until he elected to treat Haresh’s breach as terminating the
partnership after December 2012. (Id. at p. 489 [“when there
are ongoing contractual obligations the plaintiff may elect to rely
on the contract despite a breach, and the statute of limitations
[period] does not begin to run until the plaintiff has elected to
treat the breach as terminating the contract”].) Shailesh appears
to contend that, as a result, even if Haresh’s conduct harmed
him before November 2012, the statute of limitations was not
triggered unless Haresh terminated the partnership before that
date. Based on this theory, he now contends the jury’s finding
that he was harmed before November 2012 was insufficient to
trigger the statute of limitations and thus does not support
the judgment.
“A party who fails to object to a special verdict form
ordinarily waives any objection to the form,” however. (Behr,
supra, 193 Cal.App.4th at p. 530; Zagami, Inc. v. James A.
17
Crone, Inc. (2008) 160 Cal.App.4th 1083, 1093, fn. 6 [“if the
form of a verdict is defective, the complaining party must object
or risk waiver on appeal of any such defect”]; Thompson Pacific
Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th
525, 550–551 [failure to object in trial court to special verdict
form on ground asserted on appeal forfeited that claim of error];
Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th
257, 277 (Mardirossian) [“Because [appellant] did not challenge
the special verdict form on this ground below, we do not consider
it for the first time on appeal.”].)
As defendants note, there is no evidence in the record
that Shailesh ever objected to the special verdict form
in the trial court or asked the court to include the specific
interrogatories “he now considers ‘crucial.’ ” (See Behr, supra,
193 Cal.App.4th at pp. 529-530 [in case involving transmission
of disease, defendant forfeited challenge to special verdict form’s
failure to specify timing of plaintiff’s infection when defendant,
not plaintiff, believed findings as to the timing were essential
to determine his liability, but neither asked the court to include
those questions nor sought to clarify or correct the verdict before
the jury was discharged]; but see id. at pp. 531-532 [finding
forfeiture rule did not apply where special verdict omitted finding
necessary to support judgment, explaining, “[i]f [plaintiff] chose
not to include a proposed factual finding essential to one of her
claims, it [was] not incumbent on . . . defendant[ ] to make sure
the omission [was] cured”].)
Admittedly, there are exceptions to this forfeiture rule.
For example, a forfeiture will not be found “ ‘where the record
indicates that the failure to object was not the result of a
desire to reap a “technical advantage” or engage in a “litigious
strategy.” ’ ” (Behr, supra, 193 Cal.App.4th at p. 530.) The court
also need not find a forfeiture where the appellant challenges
18
the special verdict as “fatally inconsistent” or failing to support
the trial court’s entry of judgment on a particular theory—
as Shailesh purports to do here. (Id. at pp. 530–531; Saxena,
supra, 159 Cal.App.4th at pp. 326–328 [defendant did not forfeit
challenge to special verdict form prepared by plaintiff in a
medical negligence and battery case where the verdict form asked
if patient gave “ ‘informed consent,’ ” but did not ask if patient
gave “ ‘no consent’ at all”—a necessary element for medical
battery—rendering verdict fatally defective; defendant’s failure
to object also was not part of a litigation strategy as he already
had argued the difference between the two concepts and objected
to jury instructions equating informed consent with consent].)
Nevertheless, based on this record, we agree with
defendants that Shailesh has forfeited his challenge to the
special verdict form. First, nothing in the record clearly shows
Shailesh’s failure to object to the special verdict form, or to
propose the questions he now contends were necessary, was
not part of a litigation strategy. For example, the record does
not show Shailesh accepted the special verdict, as defense counsel
did in Saxena, after failing to convince the trial court his theory
required different jury instructions. We need not speculate on
his trial counsel’s reasons for failing to ask the court to include
questions specific to whether and when Haresh terminated
the partnership agreement, however.
In his reply to defendants’ forfeiture argument, Shailesh
asserts he opposed defendants’ motion to bifurcate and argued
the statute of limitations issue “ ‘include[ed] the continuing
events wherein Plaintiff was being reassured [that] Haresh
Jogani would honor the partnership following the conclusion
of [the Shashi action.]’ ” He notes he also argued the merits
of his claims were “ ‘intertwined with the evidence necessary
to resolve the statute of limitations affirmative defense.’ ”
19
But, Shailesh does not challenge the trial court’s decision to
try the statute of limitations issue first. Nor does he argue
he objected to the special verdict form as requiring additional
findings to resolve that issue.
Not only did Shailesh fail to object to the special verdict
form; if there was any error, Shailesh invited it. Shailesh’s
proposed verdict form submitted to the court required the jury
to determine only the timing of Shailesh’s harm—not whether
(or when) Haresh terminated the alleged partnership. “Under
the doctrine of invited error, when a party by its own conduct
induces the commission of error, it may not claim on appeal
that the judgment should be reversed because of that error.”
(Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.)
The doctrine does not apply, however, “when a party, while
making the appropriate objections, acquiesces in a judicial
determination.” (Ibid., italics added.) Thus, an attorney
who submits to an adverse ruling, having made appropriate
objections or motion, does not forfeit the claim of error in
the ruling by trying “ ‘ “to make the best of a bad situation.” ’ ”
(Id. at pp. 212–213.)
Here, the trial court adopted—almost word for word—
the second interrogatory Shailesh’s proposed special verdict
form posed for each cause of action. Shailesh’s proposed
interrogatories were:
(1) “[D]id Shailesh Jogani’s claimed harm relating
to the California real estate partnership occur
before November 25, 2012?” and
(2) “Before November 25, 2012, did Shailesh Jogani
know of facts that would have caused a
reasonable person to suspect that he had
suffered harm relating to the California
20
real estate partnership that was caused by
Haresh’s wrongful conduct?”17
The court did not think the first question was necessary.18
The court proposed the verdict form “just go right to [Shailesh’s
proposed] second question, which is very much like the first
question of the defendants’ [proposed form].” The special verdict
form provided to the jury asked,
“With respect to Plaintiff’s First Cause of
Action for Breach of Oral Contract [or other
cause of action], on or before November 25,
2012 [or 2011], did Shailesh Jogani know of
facts that would have caused a reasonable
person to suspect that he had suffered
harm relating to the California real estate
partnership that was caused by Haresh
Jogani’s wrongful conduct?”
At no time during the discussion about the special verdict form
did Shailesh’s counsel ask the court to add questions about
whether Haresh terminated the partnership agreement or
argue the special verdict form did not preserve his anticipatory
breach theory.
17 The questions posed for the breach of fiduciary duty cause
of action reflected the three-year statute of limitations period—
November 25, 2011. We discuss the special verdict form in terms
of Shailesh’s cause of action for breach of oral contract—the focus
of his argument. Our analysis applies equally to his two other
claims.
18 Shailesh does not contend the trial court erred by omitting
his first proposed interrogatory from the special verdict for each
cause of action.
21
Nor was Shailesh simply making the best of an adverse
judicial determination by submitting his proposed form without
the specific interrogatories he contends are essential. As we
discuss, his proposed verdict form tracked the language from
the pattern CACI No. 388 instruction that he requested. The
court included that language in the special jury instructions on
the statute of limitations. Shailesh may have opposed the court’s
decision to try the affirmative defense first, but the court never
ruled he could not present to the jury his theory that he had
not been harmed before November 2012. For example, nothing
in the record shows Shailesh asked the court to instruct the jury
on anticipatory breach and that the court refused. (See Saxena,
supra, 159 Cal.App.4th at p. 329 [invited error doctrine did not
apply where defendant also submitted proposed verdict form that
omitted finding on actual consent where trial court had rejected
defense counsel’s repeated argument that informed consent and
actual consent differed and thus made the best of a bad situation
that was not of his doing].) Having gotten what he asked for,
Shailesh cannot now contend the court committed reversible
error by doing so.
Finally, findings as to whether and when Haresh
terminated the partnership were not necessary to support
the judgment on defendants’ statute of limitations defense.
The verdict form followed the legal principle articulated in
the jury instruction Shailesh proposed that, to succeed on their
statute of limitations defense, defendants must prove Shailesh’s
“claimed harm occurred before November 25, 2012.” The
instructions incorporated—ironically, over Shailesh’s objection—
the elements to establish a breach of contract cause of action:
the parties entered into an oral contract, Shailesh performed,
the conditions required for Haresh’s performance had occurred,
Haresh did not perform his contractual obligations, Shailesh
22
was harmed, and Haresh’s breach of oral contract was a
substantial factor in causing Shailesh’s harm.19 At Shailesh’s
request, the court also instructed the jury that “[a] contract cause
of action does not accrue until the contract has been breached.”
The instruction concluded, “A claim accrues when the plaintiff
discovers or could have discovered through reasonable diligence
the injury and its cause.” Shailesh does not claim instructional
error.
If the jury followed the court’s instructions—and we
presume it did (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780,
803 (Cassim))—its finding that Shailesh knew of facts indicating
Haresh’s wrongful conduct had caused him harm before
November 25, 2012, necessarily subsumed a finding that
Haresh had breached their oral contract before that date,
i.e., the occurrence of the conditions requiring his performance,
his nonperformance, and its causation of Shailesh’s harm.
The jury’s verdict thus resolved the only controverted issue
in this phase of the trial—whether Shailesh’s claimed harm—
e.g., Haresh’s breach of their oral contract—accrued before
November 25, 2012. There was no need for separate findings
as to the “elements” of that breach to support the judgment
finding the statute of limitations barred Shailesh’s claims. (See,
e.g., J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th
323, 340–341 [special verdict that generally asked if defendant
should be estopped was sufficient where court “fully instructed”
19 The jury instructions also included the elements on
Shailesh’s other two claims. Shailesh objected to including
the elements in the jury instruction—he thought the jury would
be confused because it was being asked to assume, not decide,
the existence of a contract. Rather, the jury was being asked
to decide when the breach of contract occurred.
23
the jury on proof required to establish estoppel; in finding
defendant should be estopped, “the jury necessarily found
that each of the elements of estoppel had been proven”];
Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006)
143 Cal.App.4th 333, 364–365 [court did not err in refusing
to include questions on defense of impossibility or impracticality
in breach of contract special verdict form when jury was
instructed to find defendant’s performance excused if defenses
were established; jury’s finding that breach occurred showed it
did not find defendant’s performance impossible or impractical].)
As defendants note, Shailesh really “is attempting to
overturn . . . the jury’s verdict that he had knowledge that
harm occurred before November 25, 2012.” For example, the
jury could have determined no reasonable person would believe
Haresh’s assurances, and he had in fact terminated the alleged
partnership long before November 2012. Because Shailesh
does not challenge the sufficiency of the evidence, we need not
determine if the evidence was sufficient to support such a finding.
Needless to say, Shailesh argued his theory of the case
to the jury; we presume the jury rejected it. Indeed, during
his closing argument, Shailesh’s counsel specifically explained
how the questions posed in the verdict form related to Shailesh’s
theory of the case and exactly when Shailesh believed his
“claimed harm” had occurred. Counsel argued the evidence
showed the brothers agreed to put the profits from the real estate
partnership back into the partnership’s investments. Thus,
Shailesh could not have been harmed for purposes of the statute
of limitations—as Haresh’s counsel had argued—when Haresh
failed to distribute those profits before November 2012 because
Haresh’s conduct was not “wrongful”—Shailesh had agreed to
the arrangement.
24
Counsel repeatedly asked the jury to consider “what was
the harm” Haresh’s wrongful conduct caused Shailesh, arguing
Haresh’s statements to pay the brothers when the Shashi case
ended was not a breach of their agreement (and thus caused
no harm) and that Shailesh agreed to that arrangement (and
thus was not yet harmed). Counsel argued, “And the law says,
as you see, unless you suffer harm from Haresh Jogani’s wrongful
conduct, unless you do, you must write ‘No.’ The statute doesn’t
run.” “[I]n looking at the verdict form that you’re going to be
asked to answer these questions, what harm was suffered?
By what wrongful conduct? He agreed to it.” Counsel’s argument
itself demonstrates the sufficiency of the special verdict form.
Yet, if Shailesh believed the special verdict form had to
include specific questions to preserve his theory Haresh had
ongoing contractual obligations that he had not breached before
November 25, 2012, Shailesh was required either to include those
questions in his proposed special verdict form or to object to the
special verdict form in the trial court. (Mardirossian, supra,
153 Cal.App.4th at p. 277 [party forfeited right to challenge
special verdict where it did not raise challenge in the trial court
and party’s own proposed verdict form did not include the
information party claimed on appeal had been erroneously
omitted]; Behr, supra, 193 Cal.App.4th at p. 530 [where
defendant thought specific findings were important to establish
whether he was liable to plaintiff, “[i]t was . . . incumbent on him
to see that [those] findings . . . were included in the verdict”].)
He did neither. At best, he has forfeited his challenge to the
special verdict on appeal. (Ibid.) At worst, he invited the
purported error, and, as a result, is bound by the purportedly
defective special verdict form. (Saxena, supra, 159 Cal.App.4th
at p. 329.)
25
2. The excluded recordings
Shailesh contends the trial court committed prejudicial
error by excluding his “silver bullet” impeachment evidence—
the audio recordings of Haresh purportedly contradicting his
testimony at trial that: (1) after 1978, he never told his brothers
they were partners, and (2) he never told his brothers he would
distribute the profits from the real estate partnership when
the Shashi action concluded.
a. Standard of review and applicable law
We review a trial court’s evidentiary rulings for abuse
of discretion. In so doing, we review the trial court’s ruling,
not its rationale. (Park v. First American Title Co. (2011) 201
Cal.App.4th 1418, 1427, citing Salazar v. Southern Cal. Gas Co.
(1997) 54 Cal.App.4th 1370, 1376.) “If evidence is excluded
on an improper objection but the evidence excluded is subject
to objection on a different ground, it does not matter that the
reason advanced by counsel or relied upon by the court was
wrong. [Citations.] If the exclusion is proper upon any theory
of law applicable to the instant case, the exclusion must be
sustained regardless of the particular considerations which
may have motivated the trial court to its decision. [Citations.]”
(Philip Chang & Sons Associates v. La Casa Novato (1986)
177 Cal.App.3d 159, 173.)
Under section 352, a trial court has discretion to “exclude
evidence if its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
“ ‘A trial court’s exercise of discretion under . . . section 352
will be upheld on appeal unless the court abused its discretion,
that is, unless it exercised its discretion in an arbitrary,
26
capricious, or patently absurd manner.’ ” (People v. Johnson
(2019) 8 Cal.5th 475, 521.)
b. The trial court did not abuse its discretion
Shailesh challenges as legally erroneous each individual
basis the court articulated in reaching its decision to exclude the
audio recordings. He argues: Chetan’s testimony was sufficient
as a matter of law to authenticate the recordings and establish
their chain of custody and, thus, the fact they were in Gujarati,
of partial conversations, and older, were not valid bases to
exclude them; the recordings of Haresh’s admissions in his own
voice were not cumulative of the brothers’ earlier testimony of
what he said to them, carried much greater weight than Chetan’s
testimony, and were the “best evidence” of Haresh’s statements
during the brothers’ meetings; and Penal Code section 632 did
not apply because Chetan made the recordings in India and
would testify he told everyone he was recording the meetings.20
Had the court excluded the recordings on one of these
bases alone, we might agree it erred. As Shailesh argues,
Chetan’s proffered testimony was legally sufficient to lay a
foundation for the recordings’ admissibility. (See, e.g., People v.
Patton (1976) 63 Cal.App.3d 211, 214–215, 220 [tape recording of
phone conversation adequately authenticated where participant
testified recording was accurate and complete except for gap
at beginning due to recording malfunction]; id. at p. 220 [“tape
recording is not barred by the best evidence rule merely because
a witness to the conversation is available”].) It also is true, as
Shailesh asserts, “[e]vidence that is identical in subject matter
20 The court made clear Penal Code section 632 did not apply
to the recordings, but expressed its concern they implicated
California’s strong public policy against using surreptitiously
obtained recordings in court.
27
to other evidence should not be excluded as ‘cumulative’ when
it has greater evidentiary weight or probative value.” (People
v. Mattson (1990) 50 Cal.3d 826, 871; see also, e.g., People
v. Jablonski (2006) 37 Cal.4th 774, 806 [audio recording
of defendant “sequentially recounting the circumstances of
his crimes in great detail,” not cumulative despite testimony
defendant had capacity to act rationally; recording was
“uniquely probative in a way that neither [an expert’s] report
nor the testimony of other witnesses could be”].)
But, the trial court did not exclude the recordings on just
one of these bases.21 Instead, the court considered the totality
of the circumstances and found a “wealth” of issues under
section 352 that weighed against admitting the recordings.
Shailesh’s offer of proof of Chetan’s testimony revealed
gaps in the recordings’ chain of custody, and defense counsel
revealed issues relating to their authenticity—including
indicia of possible alteration, such as unexplained periods of
silence within them. Nor did the recordings capture the entirety
of conversations they recorded—apparently starting in the
middle of a conversation and ending before that conversation had
concluded—raising concerns about missing context or purposeful
omission of parts of the discussion. Also, the transcripts did not
inspire confidence in the accuracy of the recordings’ transcription
or translation from Gujarati to English—they were “replete with
spelling errors [and] untranslated words.”
In the court’s words, there were “all kinds of problems
with the admissibility of these audio files” discussed over the
course of the section 402 hearing. The court concluded it was
“not worth the risk” to admit them in light of the court’s many
21 As a result, we need not address each of Shailesh’s
arguments.
28
concerns given (1) the probative value of the recordings was
“really not there” for this phase of the trial—the jury was
not deciding whether an oral partnership existed or equitable
estoppel applied;22 and (2) the jury already had heard the precise
statements Haresh purportedly made in the recordings during
Chetan’s testimony and had heard Shailesh and other witnesses
testify about Haresh’s representations to them. Yet, Shailesh
completely ignores the court’s finding that the recordings
implicated “serious” concerns under section 352. Indeed,
on appeal he does not address section 352 at all.
Instead, he argues—as he did to the trial court—that the
audio recordings were “powerful and compelling” impeachment
evidence against Haresh, directly contradicting—in his own
voice—his earlier testimony that he never told his brothers
they were partners, and never promised to distribute the profits
from their real estate partnership at the end of the Shashi action.
He again asserts the recordings of Haresh’s admission were vital
to rebut defense counsel’s anticipated closing argument that
the jury could not believe Chetan’s testimony—or Shailesh’s or
Rajesh’s—about what Haresh said because they were admitted
perjurers. At trial, counsel posited, “[W]hat best evidence would
there be, when they’re going to challenge the credibility of Chetan
Jogani[, than] to say, here’s a tape with a voice being heard by
the jury of Haresh Jogani saying the exact opposite of what he
testified repeatedly under oath. Now we don’t have to even talk
22 The court, rather than the jury, decided Shailesh’s claim
that Haresh was equitably estopped from asserting the defense
of the statute of limitations. For purposes of deciding that issue,
the court presumed the recordings included Haresh’s statements
that the brothers testified he made.
29
about the credibility of Chetan Jogani because we have Haresh’s
own spoken word on audiotape.”
We do not disagree that hearing a party’s statements
in his own voice on a recording can have greater impact than
hearing a witness relay what the party said. As the trial court
alluded, however, the devastating impact Shailesh expected the
“silver bullet” recordings to make on Haresh’s credibility was
not there. Except for Haresh’s purported statement in English
that “ ‘[w]e are partners, not brothers,’ ” the voices the jury would
hear on the recordings would be in Gujarati. Instead of “hearing”
Haresh’s purported admissions in his own voice, therefore, the
jury would hear his statements—and any reaction Shailesh had
to them—translated through an interpreter. The court was not
unreasonable in anticipating the jury would be unable to tell
who was speaking with the recorded voices “filtered through . . .
a couple translations.” In the end, the jury would have to “rely[ ]
totally on Chetan as to who’s doing the speaking,” and he already
had testified to what Haresh said.
“ ‘The weighing process under [Evidence Code] section 352
depends upon the trial court’s consideration of the unique
facts and issues of each case, rather than upon the mechanical
application of automatic rules.’ ” (Evans v. Hood Corp. (2016)
5 Cal.App.5th 1022, 1044–1045.) In light of its many concerns,
the court believed it would be “a minefield” to “get[ ] into” the
audio recordings. On this record, we cannot conclude the trial
court’s assessment—that the probative value of the recordings
was outweighed by the likelihood their admission would confuse
the issues or mislead the jury—was arbitrary, capricious, or
patently absurd.
30
c. Shailesh has not established prejudice
Even if the trial court abused its discretion, the erroneous
exclusion of evidence is not reversible error unless it caused a
“miscarriage of justice.” (Cal. Const., art. VI, § 13; Evid. Code,
§ 354.) “ ‘[A] “miscarriage of justice” should be declared only
when the court, “after an examination of the entire cause,
including the evidence,” is of the “opinion” that it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.’ ” (Cassim,
supra, 33 Cal.4th at p. 800.) In this context a reasonable
probability “ ‘does not mean more likely than not, but merely
a reasonable chance, more than an abstract possibility.’ ” (D.Z. v.
Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 231.)
We cannot conclude it reasonably probable that, had it
heard the recordings, the jury would have found Shailesh could
not have known before November 2012 that he had been harmed
by Haresh’s wrongful conduct. First, as the trial court noted,
because Shailesh does not understand English, Haresh’s recorded
statement in English that the brothers were partners would
not show Shailesh’s knowledge of that specific representation.
Moreover, the recordings included discussions only until 2010—
two years outside the statute of limitations period. Thus,
representations Haresh made in 2010, including his purported
promise to pay the partnership proceeds at the end of the Shashi
action, would not have affected the jury’s conclusion Shailesh
should have known Haresh had harmed him before 2012.
Finally, to accept the recordings’ accuracy, the jury would
have had to believe Chetan when he laid the foundation that
the recorded conversations were accurate and had not been
altered from the time he recorded them on his phone nine to
16 years earlier. Yet, one of the very reasons Shailesh wanted
to introduce the recordings was the jury’s potential disbelief of
31
Chetan’s testimony about what Haresh said at these meetings.
It follows, as defendants argue, that if the jurors were likely to
discredit Chetan’s testimony about what Haresh said, there was
no more than an “ ‘abstract possibility’ ” they nevertheless would
believe Chetan’s testimony about the accuracy of the recordings
containing those statements. (D.Z., supra, 35 Cal.App.5th at
p. 232.)
3. Shailesh’s dismissed fraud claim
Shailesh also contends the trial court erred when it
sustained defendants’ demurrer to his fraud cause of action.
A court of appeal will reverse a trial court’s error “in ruling on
matters relating to pleadings . . . only if the appellant can show
resulting prejudice, and the probability of a more favorable
outcome, at trial.” (Waller v. TJD, Inc. (1993) 12 Cal.App.4th
830, 833.) Thus, Shailesh must show not only that the trial court
erred in sustaining the demurrer, but also that the error was
prejudicial. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
The statute of limitations period for fraud is three years—
the same period that applied to Shailesh’s breach of fiduciary
duty claim. (Code Civ. Proc., § 338, subd. (d).) For Shailesh’s
breach of fiduciary duty claim, the jury responded “yes” to the
special verdict form’s question: “on or before November 25, 2011,
did Shailesh Jogani know of facts that would have caused a
reasonable person to suspect that he had suffered harm relating
to the California real estate partnership that was caused by
Haresh Jogani’s wrongful conduct?”
The wrongful conduct for all of Shailesh’s claims arose
out of the same set of alleged facts: the four brothers ran
their businesses as partners with each having an interest in a
percentage of the collective profits; in 1995, Haresh orally agreed
to invest the four brothers’ funds in the California real estate
market for their mutual benefit; he agreed to manage the real
32
estate portfolio through the defendant companies for their
collective benefit; during conversations from 1995 through 2012
Haresh orally confirmed to Shailesh that his “partnership
interest was intact” and Haresh would distribute his share of
the real estate portfolio after the Shashi action resolved; and not
until after December 2012, did Shailesh “c[o]me to believe and
understand that Haresh was disavowing” their partnership and
asserting the partnership did not own the real estate portfolio.
Haresh’s alleged wrongful conduct specific to his
fraud claim essentially was the same as that underlying
his other causes of action, including breach of fiduciary duty:23
Haresh represented in 1995 that he would conduct the brothers’
businesses as a partnership and manage the real estate
investments for their collective benefit; he assured Shailesh
from 1995 through 2012 that Shailesh’s interest in the
partnership was intact and he would receive distribution
of his share of the proceeds after the Shashi action resolved;
Haresh failed to disclose his “secret intention” not to honor
the parties’ agreement and to deny Shailesh his interest in the
real estate portfolio; and, as with all of the other causes of action,
Shailesh did not discover until December 2012 that Haresh
did not intend to honor their agreement or act in Shailesh’s
and the other brothers’ best interests.
Shailesh does not explain how the jury—had his fraud
claim proceeded to the bifurcated trial on the statute of
23 Shailesh’s breach of fiduciary duty claim added Haresh
breached his fiduciary duty to Shailesh by “denying the existence
of the [p]artnership” and Shailesh’s interest in it, making
distributions to himself but not to Shailesh, and taking equity
from the real estate portfolio without distributing Shailesh
his share.
33
limitations issue—would be able to find his fraud claim was
not barred when, based on the same underlying facts, it found
his breach of fiduciary duty claim was.24 (See Piedra v. Dugan
(2004) 123 Cal.App.4th 1483, 1500 [any error in granting nonsuit
not prejudicial where jury returned verdict in defendant’s favor
and facts to be proved as to dismissed and tried claims were
the same].) Indeed, given Shailesh asserted Haresh’s wrongful
conduct caused the same harm for all of his causes of action—
the deprivation “of the benefit of his proportionate interest
in the real estate held”—the jury could only have found that,
for Shailesh’s fraud claim, he knew of facts, on or before
November 25, 2011, “that would have caused a reasonable person
to suspect that he had suffered harm relating to the California
real estate partnership [or any other part of the brothers’ alleged
partnership] that was caused by Haresh’s . . . wrongful conduct.”
For the same reasons, the trial court court’s rationale
for finding the doctrine of equitable estoppel did not apply to
Shailesh’s contract and fiduciary duty claims also would have
applied to Shailesh’s fraud claim had it overruled the demurrer.
Accordingly, we need not determine whether the trial court erred
in sustaining the demurrer because Shailesh cannot demonstrate
prejudice in any event. (See, e.g., Grell v. Laci Le Beau Corp.
(1999) 73 Cal.App.4th 1300, 1307 [order sustaining improperly
filed demurrer harmless where court’s later conclusion on
summary judgment that statute of limitations was not tolled
would have applied to all claims]; Curtis v. Twentieth Century-
24 Shailesh simply repeats the SAC’s allegations and argues
they sufficiently pleaded the elements of fraud. He does not
address the issue of prejudice at all. We will neither presume
prejudice nor act as Shailesh’s counsel “by furnishing a legal
argument as to how the trial court’s ruling was prejudicial.”
(Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
34
Fox Film Corporation (1956) 140 Cal.App.2d 461, 464–465, 469
[where two counts of complaint were based on same allegations
order sustaining demurrer on one was not prejudicial as jury
found against plaintiff on second count].)
DISPOSITION
The judgment is affirmed. Defendants-Respondents are
to recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
35