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Kohan v. Cohan9/21/1988
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
No. B027586
1988.CA.40332 ; 251 Cal. Rptr. 570; 204 Cal. App. 3d 915
September 21, 1988
KHANBABA KOHAN ET AL., PLAINTIFFS AND APPELLANTS,
v.
NEDJATOLLAH F. COHAN ET AL., DEFENDANTS AND APPELLANTS
Superior Court of Los Angeles County, No. C-419711, Robert H. O'Brien, Judge.
Kaye, Scholer, Fierman, Hays & Handler, Pierce O'Donnell, Cruz Reynoso, Betsy Handler and Morton Minikes for Plaintiffs and Appellants.
Coudert Brothers, Douglas L. Hallett, George M. Soneff and Craig H. Missakian for Defendants and Appellants.
Opinion by Lillie, P. J., with Johnson, J., and Soven, J., concurring.
Lillie
In an action for dissolution of partnership, an accounting and other relief, defendants appeal from an order granting plaintiffs' motion for new trial and plaintiffs cross-appeal from the judgment vacated pursuant to the order for new trial.
Factual and Procedural Background
Plaintiffs, Khanbaba Kohan and Morteza Kohan, and defendant Nedjatollah Cohan are brothers and natives of Iran . In Iran the brothers transacted business together accumulating real and personal property held in the names of all three. In 1961 the brothers executed an agreement which recited that, in the past, the wealth accumulated by them had "been registered to everyone's name in a non-proportional ratio." In order "to clarify their financial situation," the agreement declared that all of the brothers' assets, in Iran or abroad, registered in the name of any one brother, or which any of them subsequently acquired, were to be divided among them in the following proportions: Nedjatollah, 35 percent; Khanbaba, 35 percent; Morteza, 30 percent. The agreement further provided that any asset acquired by one brother through his individual activities became part of the joint account of all of them. The agreement was to remain in force until "an official written settlement is drawn up evidencing the dividing of the joint belongings . . . ." Following their execution of the agreement the business of the brothers flourished and by the time of the Iranian revolution (1978-1979) they were among the wealthiest families in Iran. Because of the revolution all three brothers left Iran, arriving in California in 1979.
In 1981, in response to his request, Khanbaba received from Nedjatollah a statement of assets in the latter's possession. On July 29, 1982, Khanbaba and Morteza, apparently dissatisfied with this accounting, sued Nedjatollah in California for declaratory relief, dissolution of partnership, accounting, breach of contract, breach of fiduciary duty and injunctive relief. The second amended complaint included the following allegations: In breach of the parties' 1961 agreement, defendant refused to dissolve the partnership and account for and divide the assets thereof and appropriated for himself alone assets standing in his name which he held in trust for plaintiffs; plaintiffs did not learn of defendant's repudiation of the partnership agreement and appropriation of partnership assets until a time within three years of the filing of the complaint.
Defendants moved for summary judgment on the ground the action is barred by the statute of limitations, arguing plaintiffs' causes of action accrued when defendant repudiated and withdrew from the partnership in 1976. In support of the mo
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