Filed 6/22/16 Khodayari v. Ardalan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BAHMAN KHODAYARI, B262916
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. LC090227)
v.
PEZHMAN CHRISTOPHER ARDALAN
et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County,
Frank Johnson, Judge. Affirmed.
Bahman Khodayari, in pro. per., for Plaintiff and Appellant.
Law Offices of Mark K. Drew and Mark K. Drew for Defendants and
Respondents.
Some three years ago we decided an appeal between the same parties, over the
same dispute. (Khodayari v. Ardalan (April 10, 2013, B239102) [nonpub. opn.];
“previous opinion.”) In that case, appellant sought to reverse court orders granting
dismissal of most of the causes of action after a successful demurrer and summary
judgment for respondents on the others. In our unpublished opinion from that appeal, we
affirmed the order of dismissal but reversed the order granting summary judgment.
Those rulings and their supporting rationale are, of course, law of the case as to this
subsequent appeal. (People v. Barragan (2004) 32 Cal.4th 236, 246; Witkin, California
Procedure (5th ed., 2008), Appeal, § 459.) In further proceedings on remand, the trial
court ultimately granted respondents’ motion for judgment on the pleadings, and it is
from that judgment that the present appeal is presented.
FACTUAL AND PROCEDURAL SUMMARY
The underlying facts and procedural history are fully discussed in our previous
opinion, and we briefly recount them now.
Appellant, Bahman Khodayri, and his brother operated an auto repair business. In
2006 appellant was charged with 26 misdemeanor counts of grand theft, attempted
extortion, and other related crimes. He sought legal representation and ultimately
retained respondents. The previous appeal and this appeal center on the terms of that
engagement. Appellant claimed that respondent agreed to represent him in the criminal
proceedings, through trial by court or jury, for a flat fee of $15,000, to be paid in
advance, excluding costs of investigation and appeal. According to appellant, that was
the oral agreement of the parties. The written retainer agreement was quite different. It
provided that respondents would represent appellant in the criminal proceedings for a fee
of $300 an hour for counsel and $100 an hour for paralegals and law clerks, plus various
costs, and that appellant would provide an advance of $15,000 for the first 50 hours of
work. According to appellant, when the agreement was signed, respondents told him that
it reflected the terms agreed to in the oral understanding, and appellant simply signed the
written instrument at the places indicated by respondents. Significantly, appellant is a
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Farsi speaker with no or limited ability to read and understand English.
Appellant paid the $15,000 and respondents undertook the representation. This
was in September 2006. Beginning in January 2007, respondents told appellant that the
$15,000 had been largely drawn down and needed to be replenished. The relationship
between attorney and client became strained at that point, and in March 2007 respondents
moved to be relieved as counsel due to a conflict of interest. Ardalan explained that the
attorney-client privilege precluded him from providing more information about their
differences. In response to the court’s question, appellant declined to waive the privilege,
and the court granted respondents’ motion to be relieved. In July 2008, appellant was
incarcerated as a result of the criminal proceedings. In June 2010 he sued respondents.
His complaint alleged 16 causes of action. The second amended complaint became the
operative pleading. Respondents’ demurrer was sustained as to all causes of action in
that complaint except the action for breach of contract. Respondents then moved for
summary judgment on that cause of action. Summary judgment was granted, resulting in
a final trial court adjudication as to the entire operative pleading. On appeal, we upheld
the trial court rulings on all but the contract cause of action. As to that, we reversed for
further proceedings in light of the Supreme Court’s then very recent decision in
Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55
Cal.4th 1169 (Riverisland). On remand, the trial court granted judgment on the pleadings
to respondent on that remaining cause of action.
As recounted in our previous opinion, the breach of contract cause of action in the
second amended complaint was based on allegations that respondents repeatedly assured
appellant that the $15,000 payment would cover the entire cost of defense through jury
trial (with the exceptions we have noted), but breached the agreement by refusing to
provide further representation without further payment of fees by appellant, and then
withdrawing from representation. Appellant’s case for breach of contract turned on
application of the parol evidence rule, which is codified in Code of Civil Procedure
section 1856 and Civil Code section 1625. The rule provides, broadly, that parol
evidence is inadmissible to alter or add to the terms of an integrated writing, including
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written contracts. A writing is “integrated” when it constitutes the final expression of one
or more terms of the agreement. No one questions whether the written agreement in this
case is “integrated”; the issue on appeal turns on the exception to Code of Civil
Procedure section 1856, subdivision (g), making the rule inapplicable to “establish
illegality or fraud.”
Appellant’s position is that this exception applies to the present dispute. His
argument is essentially that he and respondents had reached an agreement about the
latter’s legal representation, which was essentially that, in exchange for a $15,000 flat
fee, paid in advance, respondents would represent appellant through a jury verdict in the
case, plus costs of investigation. And respondents told appellant that the written
agreement reflected that understanding, and indicated where appellant should sign it.
Believing this representation, appellant signed the written agreement. His doing so, he
argues, was the result of fraud perpetrated by respondents because the written contract
was very materially different from the oral understanding.
As discussed in our previous opinion, Riverisland, supra, 55 Cal.4th 1169
overruled a previous opinion of the Supreme Court, Bank of America Etc. Assn. v.
Pendergrass (1935) 4 Cal.2d 258 (Pendergrass), which had limited the fraud exception
by holding that proof of fraud requires evidence of fraud in the procurement of the
instrument or a breach of confidence in its use, and “not a promise directly at variance
with the promise or writing.” (Id. at 263.) Riverisland holds that the rule is not so
limited, and, instead, that ‘“it was never intended . . . [to] be used as a shield to prevent
the proof of fraud.”’ (55 Cal.4th at p. 1182.) Respondents argued that Riverisland is not
applicable to the present dispute because appellant did not challenge the validity of the
contract, but was seeking to modify its terms to reflect the oral understanding. We
declined to read the case so narrowly. Instead, we reasoned that, as in Riverisland, the
gravamen of the breach of contract cause of action was that the written agreement did not
memorialize the actual agreement of the parties—that appellant would have been
representated by respondents through trial for a flat fee of $15,000—which respondent
breached by refusing to represent him through trial without payment of more money.
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That agreement stated a viable cause of action, and parol evidence was admissible to
raise a triable issue of material fact as to whether respondents breached the agreement by
demanding more. (Khodayari v. Ardalan, supra, B239102.) We concluded that, since
Riverisland was decided while this case was on appeal, the trial court “did not have an
opportunity to determine its impact on the timeliness of the breach of contract cause of
action,” and hence remand was appropriate. (Ibid.)
The trial court has now had that opportunity, and has concluded that appellant’s
lawsuit must still fail on statute of limitations grounds. As we next discuss, we agree
with this conclusion.
From the beginning, it has been appellant’s position that the parties reached an
oral agreement by which respondents would represent him through jury trial for a flat fee
of $15,000, paid in advance. The limitations period for breach of an oral contract is two
years. (Code of Civil Pro., § 339 (further code citations are to this code).) The alleged
breach in this case occurred in September 2006, when respondent refused to further
represent appellant without payment of more money. Appellant filed his action in June
2010, well after the two-year period. There is a signed written agreement, and the
limitations period for breach of a written agreement is four years. (§ 337.) But, as we
have discussed, the provisions of the written contract are entirely contrary to appellant’s
claim as to the oral contract.
Appellant alleges that he was induced by fraud to sign the written contract by
respondents’ assurance that the written document reflected the oral understanding with
respect to fees. The applicable limitations period for an action based on fraud is three
years. (§ 338, subd. (d).) It “is not deemed to have accrued until the discovery, by the
aggrieved party, of the facts constituting the fraud . . . .” (Ibid.) In this case, that was in
September 2006 when respondent demanded more money for representing appellant than
the $15,000 appellant already had paid, or, at the latest in March 2007, when respondents
was relieved from further representation of appellant. Appellant had three years from
then to sue for fraud. The lawsuit filed in June 2010, obviously is beyond that period.
Appellant argues we should apply the four-year statute because he signed a written
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contract, based on respondents’ false representation that it memorialized the oral
understanding the parties already had reached, and hence that the four-year statute should
apply. But this approach glosses over the fact that the heart of the action is a claim of
fraud perpetrated by respondent: that the written agreement reflected the $15,000 flat fee
arrangement, when in fact it did not.
Respondents argue that appellant is limited to suit on an oral contract, since that
was the position appellant took in discovery and arguments before the trial court and in
the previous appeal. Appellant now argues that suit on a written contract was an
alternative theory upon which he also relied. But the fee provision in the written contract
is precisely what appellant is trying to avoid.
To be sure, the deficiencies in appellant’s pleadings were before us at the time of
the earlier appeal. But Riverisland, supra, 55 Cal.4th 1169 was a new case, having been
decided shortly before oral argument in the previous appeal. We invited argument on the
case, and, noting that it had not been before the trial court, we reversed the judgment on
the pleadings on the written contract cause of action so that the issues could be more fully
developed. Nothing has been presented to justify overturning the decision of the trial
court on remand. (See, generally, Julius Castle Restaurant, Inc. v. Payne (2013) 216
Cal.App.4th 1423, 1441 [suggesting that “[i]n the post-Riverisland world, parties would
be better served in addressing the heightened burden of proving fraud in a civil action”
than seeking to limit the case on policy grounds]; Witkin, California Evidence (5th ed.,
2012 & supp.), Documentary Evidence, § 100.)
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DISPOSITION
The judgment is affirmed. Respondents to have their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
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