Golnesa Gharachedaghi v. Rogerio Callegari

The demurrer of defendant Rogerio Callegari to the first amended complaint of plaintiff Golnesa Gharachedaghi is overruled as to the first through third and eighth causes of action, and sustained without leave to amend as to the fourth through seventh causes of action.

Background

Plaintiff alleges eight causes of action arising from Defendant’s alleged misconduct in a business partnership. She alleges that he misappropriated $330,000 she contributed to the partnership and did not fulfill his obligations under their partnership agreement.

Plaintiff filed her original complaint on July 17, 2025. Her first amended complaint filed on February 17, 2026 includes the following causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) breach of fiduciary duty; (4) fraud; (5) constructive fraud; (6) conversion; (7) violation of Penal Code section 496; and (8) unfair business practices

A. Procedural Issues

Defendant’s demurrer fails to comply with California Rule of Court 3.1320(a).

“[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”

Defendant’s demurrer includes only one paragraph which challenges all of the causes of action on statute of limitations grounds and then challenges four of the individual causes of action.

Additionally, Defendant filed his demurrer one day after his response was due. The court has discretion to consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.)

Plaintiff has not been prejudiced by either of these matters and therefore the court will not overrule the demurrer based upon them. Additionally, while Plaintiff points to a case for the proposition that the court may overrule a demurrer to the entire complaint if any cause of action is stated (see Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 36), the court will not exercise its discretion in that manner in ruling on the demurrer.

B. Legal Standard

“’[A] general demurrer will lie where the complaint “has included allegations that clearly disclose some defense or bar to recovery.”’ A demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the pleading that are judicially noticeable. ‘To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action.’ The demurrer admits the truth of all material facts properly pleaded, including all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law.” (Simple Avo Paradise Ranch, LLC v. Southern California Edison Co. (2024) 102 Cal.App.5th 281, 288- 289, citations omitted.)

C. Statute of Limitations

Defendant demurs to all causes of action on the ground that they are barred by the statute of limitations. He argues that the statute of limitations began to run in September 2020 when Plaintiff requested that Defendant provide tax and financial documents. Plaintiff’s allegations show that she is relying upon the delayed discovery rule to start the statute of limitations running in December 2021. In WA Southwest 2, LLC v. First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 156-157, the court explained:

An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” A plaintiff relying on the discovery rule must plead “’(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence’” Plaintiffs have an obligation to plead facts demonstrating diligence.

“Where a fiduciary obligation is present, the courts have recognized a postponement of the accrual of the cause of action until the beneficiary has knowledge or notice of the act constituting a breach of fidelity. The existence of a trust relationship limits the duty of inquiry. ‘Thus, when a potential plaintiff is in a fiduciary relationship with another individual, that plaintiff’s burden of discovery is reduced and he is entitled to rely on the statements and advice provided by the fiduciary.’” But even [if the defendant] had a

fiduciary duty to plaintiffs, this does not mean that plaintiffs had no duty of inquiry if they were put on notice of a breach of such duty.

(Citations omitted.)

In his reply, Defendant argues that Plaintiff’s demand in September 2020 demonstrates that she suspected wrongdoing and sought verification. Defendant is raising a factual issue which cannot be resolved on demurrer. Plaintiff alleges that the partnership was supposed to provide records at the end of each fiscal year. The fact that she asked for records does not establish that she suspected that there had been wrongdoing. And because of the fiduciary relationship between her and Defendant, she was entitled to rely upon his statements that the accountant was preparing the documents and that he would send them to her when they were complete.

1. Causes of Action 1, 2, 3 and 8

Plaintiff’s causes of action for (cause of action 1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) breach of fiduciary duty and (8) unfair business practices withstand demurrer. A four year statute of limitations applies to each of those causes of action. (Code Civ. Proc., § 337, subd. (a) [breach of contract and breach of implied covenant of good faith and fair dealing]; § 343 and see Thomson v. Canyon (2011) 198 Cal.App.4th 594, 606 [breach of fiduciary duty]; Bus. & Prof. Code § 17208 [unfair business practices].) The court cannot determine from the face of the pleading that the statute of limitations began to run prior to December 2021. As to these causes of action the Demurrer is OVERRULED.

Plaintiff alleges that Defendant beached their written contract by the following acts:

30. ...by failing contribute [sic] his promised capital contribution and, instead, using Plaintiff’s funds to cover his share of the partnership/LLC obligations, such as the $50,000 HEMP fee and the rental of the hoop houses.

31. ...by depositing Plaintiff’s funds into his own bank account instead of depositing them into a separate capital account designated as Plaintiff’s account.

32. ...by refusing to allow Plaintiff to inspect the partnership/LLC financial records.

Plaintiff alleges that Defendant breached the implied covenant “by failing to open a separate account for Plaintiff’s capital contribution to the partnership/LLC, as promised, by using Plaintiff’s funds to pay for business expenses that Defendants were obligated to pay out of his initial capital contribution, by depositing Plaintiff’s capital contribution into his own account, by failing to provide the promised tax/financial records and filings, and by refusing Plaintiff’s request to audit the available books in order to learn what happened to her investment.” (¶37.)

Defendant demurs on the ground that these cause of action are barred by the four year statute of limitations set forth in Code of Civil Procedure section 337, subdivision (a), which applies to “[a]n action upon any contract, obligation or liability founded upon an instrument in writing.” Defendant argues in his moving brief:

...[T]he alleged request for tax and financial documents was made in September 2020, and Plaintiff never received the requested tax and financial documents. Therefore, the breach occurred in September 2020...

The argument assumes Defendant had an obligation to turn the documents over immediately upon Plaintiff’s request. He points to nothing in Plaintiff’s allegations to show that this was the case.

Plaintiff alleges that the partnership was supposed to provide records at the end of each fiscal year. That she asked for records does not establish that she suspected that there had been wrongdoing. And because of the fiduciary relationship between her and Defendant, she was entitled to rely upon his statements that the accountant was preparing the documents and would send them to her when they were complete.

Defendant has not shown that the four year statute of limitations began to run prior to December 2021, and therefore the action filed on July 17, 2025 is timely.

The Demurrer to the first and second causes of action is OVERRULED

2. Cause of Action 3

Plaintiff alleges that Defendant breach the fiduciary duty he owed to Plaintiff “by, among other things, depositing plaintiff’s capital contribution into his personal account and co-mingling Plaintiff’s funds with his own, failing to contribute his own funds to the activities of the business partnerships/joint venture, by spending Plaintiff’s funds in lieu of his own funds without Plaintiff’s knowledge or permission, by failing to provide the promised tax/financial records, and by refusing plaintiff’s request for an accounting of her investment funds.”

Defendant again argues that the cause of action is barred by the statute of limitations, and again cites section 337. However, CCP § 343 applies. “The Code of Civil Procedure does not specify a statute of limitations for breach of fiduciary duty. The cause of action is therefore governed by the residual four-year statute of limitations in Code of Civil Procedure section 343 governing ‘an action for relief not hereinbefore provided for’ in the code.” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 606, citation and brackets omitted.1)

Defendant has not shown that the four year statute of limitations began to run prior to December 2021. The Demurrer as to cause of action 3 is OVERRULED.

3. Causes of Action 4-6

A three year statute of limitations applies to Plaintiff’s causes of action 4-7. (§ 338, subd. (d) [fraud and constructive fraud]; § 338, subd. (c)(1) [conversion and violation of Penal Code section 496].) Plaintiff filed her action more than three years after December 2021.

1 An exception exists if the gravamen of the claim is actual or constructive fraud, in which case section 338,

subdivision (d) applies. (Id. at 606-607.) The gravamen of Plaintiff’s cause of action is not actual or constructive fraud.

In the fraud cause of action, Plaintiff alleges that Defendant repeatedly made false statements and promises in an effort to induce Plaintiff to enter into a partnership with him, contribute substantial sums of money, and entrust him with the control over partnership affairs. (¶¶45-46.) He continued making false statements and promises to induce Plaintiff to continue in the partnership and sign the partnership agreement. (¶47.) Plaintiff relied upon the statements and promises and was damaged as a result. (¶¶ 48, 50.)

In the fifth cause of action for constructive fraud, Plaintiff alleges that between June and September 2019, Defendant knew or should have known of the delays in preparing his property for cultivation yet misled Plaintiff by fabricating evidence to show that he was actively preparing the land. (¶54.) Defendant argues that the causes of action are barred by the statute of limitations and that they are not pleaded with sufficient specificity. Fraud actions are governed by the three year statute of limitations period set forth in section 338, and “[t]he cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (§ 338, subd. (d).)

Plaintiff herself acknowledges that the statute of limitations began running in December 2021. She did not commence this action until July 2025, more than three years later. She does not address these causes of action at all in the section of her opposing brief where she argues that she has adequately pled each cause of action.

The statute of limitations for conversion is three years. (See § 338, subd. (c)(1), and AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639.) Plaintiff acknowledges that her causes of action accrued in December 2021, and therefore this cause of action is barred. Although Plaintiff addresses this cause of action in her opposing brief, she only addresses the lack of standing argument.

As to causes of action 4-6, the Demurrer is SUSTAINED, without leave to amend.

4. Cause of Action 7

Plaintiff alleges that Defendant stole her money in violation of Penal Code section 496, subdivision (a). Penal Code section 496 is obviously a criminal statute, but subdivision (c) allows a person who has been injured by a violation of subdivision (a) or (b) to bring “an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.” Defendant raises the same arguments as he did in connection with the conversion cause of action.

As for the statute of limitations, Defendant argues that it is “four years pursuant to CCP Section 338(c)(1).” Section 338, subdivision (c)(1) is the three years statute of limitations application to “[a]n action for taking, detaining, or injuring goods or chattels...” Plaintiff cites Bell v. Feibush (2013) 212 Cal.App.4th 1041 in support of his argument, however there is mention of section 338 or the statute of limitations in that case. Section 496, subdivision (a) addresses “property that has been stolen or that has been obtained in any manner constituting theft or extortion...” This certainly falls under the category of “taking[or] detaining...goods or chattels.”

As the court in Bell explained, “Penal Code section 484 describes acts constituting theft.” (Id. at 1048.) Section 338, subdivision (c)(2) provides that “[t]he cause of action in the case of theft, as described in Section 484 of the Penal code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved party’s agent, or the law enforcement agency that originally investigated the theft.”

Section 338, subdivision (c) address particular causes of action in theft under section 484 to which a six year statute of limitations applies. These provisions indicate that section 338, subdivision (c) applies to “theft” under the Penal Code. In her opposition, without citing any authority, Plaintiff states that “the SOL for Penal Code § 496 is four (4) years, a fact that Defendant concedes.” However, no support is provided for the argument

The demurrer is SUSTAINED, without leave to amend.

5. Cause of Action 8

Plaintiff alleges that Defendant’s actions and omissions constitute unfair, unlawful and fraudulent business practices in violation of section 17200. (¶66.)

Defendant argues that the cause of action is barred by the statute of limitations, which is four years pursuant to section 17208. “...[T]he UCL is governed by common law accrual rules to the same extent as any other statute,” including application of the discovery rule. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1196; see also People v. Experian Data Corp. (2024) 106 CA5th 799, 809-810.) As already discussed, Defendant has not shown that the four year statute of limitations began to run prior to December 2021.

The demurrer to cause of action 8 is OVERRULED, without leave to amend.

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444-7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).