Filed 5/16/22 Shakib v. Namvar CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SAM SHAKIB et al.

 Plaintiffs and Appellants,

v.

MOUSA NAMVAR et al.,

 Defendants and Respondents.

B310928

(Los Angeles County

Super. Ct. No. BC676261)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, David J. Cowan, Judge. Affirmed. 

Roxborough, Pomerance, Nye & Adreani, Drew E.

Pomerance and Ryan Salsig for Plaintiffs and Appellants.

Reiter Dye & Brennan and Paul T. Dye for Defendant and 

Respondent.

______________________
2

INTRODUCTION

Sam Shakib and Hooshang “Sean” Namvar were real estate 

development partners. Through various limited liability 

companies, they executed a contract to develop a residential 

project in Los Angeles. When the project went awry, two of the 

limited liability companies sued Shakib and a third limited 

liability company. Shakib filed a cross-complaint. Among other 

claims, Shakib alleged Namvar breached their oral agreement to 

personally and equally share certain project development costs 

that were not included in the written contract. Shakib asserted 

Namvar stopped contributing half of the costs after construction 

halted. 

Shakib appeals the judgment entered against him following 

the trial court’s order granting Namvar’s motion for summary 

judgment or adjudication for Shakib’s cause of action for breach 

of oral contract. The trial court held Shakib’s breach of oral 

contract claim against Namvar was barred by the applicable twoyear statute of limitations. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Shakib and Namvar Partner To Develop Raw Land into 

Residential Real Estate

In September 2014, Namvar and Shakib, acting through

their respective LLCs, White Water Funding, LLC and TVD, 

LLC, entered into an Operating Agreement to form Sullivan 

Equity Partners, LLC. Shakib, an experienced real estate 

developer, agreed to oversee the development of a 12-acre parcel 

of land in the Brentwood neighborhood of Los Angeles (the 

Project). The Project required substantial grading work and
3

subterranean excavation prior to the anticipated construction of 

two single-family homes. 

Pursuant to the Operating Agreement TVD was the

Managing Member, and White Water and Dgade of Delaware, 

LLC were the two common, non-managing, members for the 

Project. The Operating Agreement established TVD had the 

exclusive right and responsibility to manage, control and 

complete the grading phase of the Project. The agreement 

memorialized the members’ initial capital contributions and 

allocated their future costs. Shakib executed a Guaranty, 

personally guaranteeing TVD’s performance under the Operating

Agreement. The Operating Agreement shielded TVD from 

liability to Sullivan or the other members for TVD’s actions, 

except for a material breach or its “Bad Acts.” The agreement 

defined “Bad Acts” as “a party’s fraudulent, reckless, willful or 

intentional misconduct, gross negligence or for its dishonesty, bad 

faith, commission of any crime, misappropriation of funds or 

other intentional wrongful act or intentional wrongful omission.” 

Shakib alleges, notwithstanding the extensive written 

Operating Agreement, he and Namvar, as individuals, previously 

entered into a separate oral agreement in which they “agreed to 

share equally and personally any costs required to complete the 

Project that arose as a result of events not anticipated in the 

Operating Agreement, such as equipment failures, neighborhood 

intervention to delay or stop the Project, the failure or revocation 

of permits or government approvals, litigation of any lawsuit 

arising out of the Project, or cost overruns.” Namvar denies the 

existence of any oral side agreement. 
4

B. The Project Goes Sideways

Work began on the Project in September 2014. Almost 

immediately, there was trouble. An inspector from the California 

Regional Water Quality Control Board visited the Project in “the 

first couple days” and “shut it down,” citing faulty and missing 

documentation. In early October 2014, the Water Board sent 

Shakib a Notice of Violation letter that identified numerous 

issues that needed to be addressed, including documentation that 

required revision. A few weeks later the Water Board sent 

Shakib a second letter that enumerated additional problems and 

stated further revisions were required “[i]n order to complete the 

project as currently proposed[.]” The Water Board ordered all 

further work on the Project stopped until the issues were 

corrected. 

Around the same time, in contravention of the Project’s tree 

removal permit from the City of Los Angeles, Sullivan’s 

construction workers cut down three protected trees on the 

property, which resulted in quasi-judicial administrative 

hearings before the City’s Bureau of Street Services in February 

2016. In March 2016, the Bureau found the tree removal was 

willful and recommended the City revoke all the Project’s permits 

and suspend the issuance of any new permits for five years. 

Sullivan appealed the decision to the City’s Board of Public 

Works. Following a hearing on June 24, 2016, the Board voted to 

uphold the Bureau’s determination that the tree cutting was 

willful, revoked all the Project’s permits, and as a penalty,

suspended the issuance of any new permits on the Project for the 

next five years. 
5

On July 27 and 28, 2016, the parties engaged in a series of 

emails. The exchange begins with an email from Sullivan’s 

attorney, Patrick Mitchell, to Namvar and Shakib. Mitchell 

stated, “I received a call today from David Coupe, the attorney for 

the [Water Board]. He said that they had received our recent 

letters, were taking them seriously and would respond within the 

next few weeks.” Namvar replied, “Nxt [sic] few WKS might b 

[sic] too late, because our grading permit will expire[.]” In 

response, Shakib wrote to Namvar, “Sean we need [an] attorney 

now[.]” Namvar answered, copying Shakib’s attorney, Saul Jaffe:

“Then go get one, this is your doing and you need to fix it, I 

responded to [Jaffe’s] email and he never responded. Please look 

at the bad act in the [Operating Agreement] and show me the 

section in the [Operating Agreement] that talks about us sharing 

the legal fees.” 

Jaffe responded and urged Namvar to “[c]arefully read the 

Operating Agreement[,]” asserting “[t]he determination of gross 

negligence must be made by court order . . . .” Jaffe asked

Namvar to “reconsider your position.” Jaffe continued,

“Complicating matters, there are a number of project related 

items that also need to be addressed such as the water board 

authorizations.” Namvar replied: “We can talk about the water 

board issues but that wasn’t what revoked the permits. . . .when I 

found out that he cut the wrong tree, that was a big issue. . . . 

[Shakib] was responsible to keep my permits safe and sound and 

with is [sic] bad acts he has ruined everything I worked for all 

this time.” 

Jaffe wrote, “I’m sorry that you are taking the position that 

you are and would urge you to reconsider and review the 

Operating Agreement which requires a court determination as to 
6

gross negligence.” Namvar replied, “YOU DONT THINK THAT 

THE COURTS WILL FIND THAT [SHAKIB] HAS DONE BAD 

ACTS? . . . And you think I would have to share the costs of 

proving this with [Shakib]?” Jaffe responded, “[m]y reading of 

the Operating Agreement is that you are obligated to pay for half 

of the costs.” 

In his final email in this exchange Namvar stated, “But 

shouldn’t [Shakib] be the one to pay for the fees to undo HIS 

mistake?” Namvar then lists his grievances against Shakib, 

concluding with “the way I c this is I can the spend the money 

and go after [Shakib]/envicom/and the water board and have a 

Better chance of getting damages, rather than going after the 

city?? I have not decided what I want to do, but this should be a 

notice to [Shakib] to fix the situation with his own money as he is 

supposed to under the operating agreement.” Jaffe replied, “I 

renew the request for you to reconsider your position and if you 

chose not to change your position and to stand on grounds that 

are not consistent with the requirements and your obligations of 

the Operating Agreement, you are free to do so; however, such a 

position has the likelihood of significant adverse ramifications to 

your interest (and any other member taking a similar position). 

Failing to act when you have a responsibility and obligation 

under the Operating Agreement will have consequences.” 

On August 17, 2016, Namvar sent another email to Shakib 

and Jaffe stating: “I have given you notice that the bad acts have 

occurred per our agreement a while back which [Shakib] MUST 

cure his Bad Acts per the operating agreement. . . . I want to 

know what steps you are taking to cure these Bad ACTS. I have 

not commenced mediation, but my investment is in total risk and 

I want to make sure you are on top of this to protect our permits 
7

and reinstate them as such. I wont [sic] have any choice but to 

follow the operating agreement and try to seek damages.” 

C. The Lawsuit

On September 19, 2017, White Water, Dgade and Sullivan

sued Shakib and TVD for breach of the Operating Agreement, 

breach of fiduciary duty, breach of Shakib’s personal guaranty

and rescission. On October 22, 2018, Shakib and TVD filed the 

operative cross-complaint against Namvar, White Water and 

another of Namvar’s LLCs (Trifish, LLC) for negligence and 

breach of oral contract. Shakib brought the breach of oral 

contract claim solely against Namvar, alleging “[i]nitially . . . 

[Namvar] paid his share of the expenses in accord with the 

parties’ agreement” but then breached their oral contract “by 

failing to continue to contribute his half of the funds necessary to 

pay the expenses that the parties agreed they would share 

equally.” Namvar, together with his LLCs, moved for summary 

judgment, or in the alternative, summary adjudication, on Shakib 

and TVD’s cross-complaint. Namvar denied the existence of an 

oral contract and argued any breach of the purported oral 

agreement occurred back in July of 2016 when Namvar 

“repudiated” any such cost-sharing obligation in his string of 

emails to Shakib and Jaffe. The trial court granted the motion 

for summary judgment on the cross-complaint, finding that if the 

parties had an oral agreement, Namvar repudiated it in July 

2016, and the applicable two-year statute of limitations barred 

Shakib’s breach of oral contract claim.1 The trial court entered 

1 Shakib did not appeal the trial court’s grant of summary 

judgment/adjudication as to his first cause of action for

negligence. 
8

judgment in favor of Namvar and Trifish on January 19, 2021.2

Shakib timely appealed. 

DISCUSSION

A. Standard of Review

“We review a grant of summary judgment de novo.” 

(Vasquez v. Department of Pesticide Regulation (2021) 68 

Cal.App.5th 672, 685; Park Management Corp. v. In Defense of 

Animals (2019) 36 Cal.App.5th 649, 658.) “‘On review of an order 

granting or denying summary judgment, we examine the facts 

presented to the trial court and determine their effect as a matter 

of law.”’ (Regents of University of California v. Superior Court

(2018) 4 Cal.5th 607, 618; accord, Wilkin v. Community Hospital 

of the Monterey Peninsula (2021) 71 Cal.App.5th 806, 820.) 

“A motion for summary judgment is properly granted if 

‘there is no triable issue as to any material fact and . . . the 

moving party is entitled to a judgment as a matter of law.’” 

(Vasquez v. Department of Pesticide Regulation, supra, 68 

Cal.App.5th at p. 685, quoting Code Civ. Proc., § 437c, subd. (c).) 

“‘[A] defendant moving for summary judgment based on an 

affirmative defense “‘bears an overall burden of persuasion that 

there is a complete defense to the plaintiff’s action”’ [and] must 

persuade the court there is no triable issue of fact as to that 

defense.”’ (Park Management Corp. v. In Defense of Animals,

supra, 36 Cal.App.5th at p. 658.) To meet this threshold burden, 

a defendant’s showing “must be supported by evidence, such as 

affidavits, declarations, admissions, interrogatory answers, 

2 Disputes between TVD, Dgade, and White Water remain 

pending before the trial court.
9

depositions, and matters of which judicial notice may be taken.” 

(Ram’s Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, 

1078.) Once a defendant’s initial burden on summary judgment

is met, “the burden shifts to the plaintiff to present evidence 

showing that a triable issue of one or more material facts exists 

as to that cause of action or affirmative defense. . . . A triable 

issue of material fact exists if, and only if, the evidence 

reasonably permits the trier of fact to find the contested fact in 

favor of the plaintiff in accordance with the applicable standard 

of proof.” (Ibid.) 

B. The Statute of Limitations Bars Shakib’s Cause of Action 

for Breach of Oral Contract 

The parties agree the outcome of this appeal primarily

turns on the content of their July 2016 email exchange. Those

emails are in the record and are undisputed, but the parties

disagree regarding whether Namvar’s emails constituted an 

unequivocal repudiation of their purported oral agreement and, if 

so, whether that repudiation triggered the two-year statute of 

limitations, rendering untimely Shakib’s claim for breach of oral 

contract. 

It is well-settled that “[a] statute of limitations ‘does not 

begin to run until the cause of action accrues,’ and a cause of 

action accrues at the moment when the party alleging injury is 

entitled to ‘“‘bring and prosecute an action thereon.’”’” (Pollock v. 

Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 930-

931.) “The statute of limitations is an affirmative defense, and as 

with any affirmative defense, the burden in on the defendant to 

prove all facts essential to each element of the defense.” (Id. at 

p. 945.) While “[r]esolution of statute of limitations issues is 

ordinarily a question of fact,” a defendant may still prevail on 
10

summary judgment “if “‘the uncontradicted facts established 

through discovery are susceptible of only one legitimate 

inference.’”’ (State Compensation Ins. Fund v. Superior Court 

(2010) 184 Cal.App.4th 1124, 1132, quoting Romano v. Rockwell 

Internat., Inc. (1996) 14 Cal.4th 479, 487 (Romano).) 

The parties agree the statute of limitations for breach of an 

oral agreement is two years. (Code Civ. Proc. § 339 [“[a]n action 

upon a contract, obligation or liability not founded upon an 

instrument of writing” must be commenced “[w]ithin two years”]; 

Cavalry SPV I, LLC v. Watkins (2019) 36 Cal.App.5th 1070, 1081 

[“In California, the statute of limitations is . . . only two years for 

a breach of contract claim based on an oral agreement”].)

As a general proposition, “[a] cause of action for breach of 

contract ordinarily accrues at the time of the breach, and the 

statute begins to run at that time regardless of whether any 

damage is apparent or whether the injured party is aware of his 

or her right to sue.” (3 Witkin, Cal. Procedure (6th ed. 2021) 

Actions § 567(1); see Ram’s Gate Winery, LLC v. Roche, supra, 

235 Cal.App.4th at p. 1084.) In order “to pinpoint the time of an 

alleged breach for purposes of the statute of limitations, it is 

necessary to establish what it was the defendant promised to do, 

or refrain from doing, and when its conduct diverged from that 

promise.” (McCaskey v. California State Automobile Assn. (2010) 

189 Cal.App.4th 947, 958.)

“‘California law recognizes that a contract may be breached 

by nonperformance, by repudiation, or a combination of the two.’ 

[Citations.] ‘Any breach, total or partial, that causes a 

measurable injury, gives the injured party a right to damages as 

compensation.’ [Citations.] Nonperformance typically refers to 

an unjustified or unexcused failure to perform a material 
11

contractual obligation when performance is due. [Citation.] But 

‘[t]here can be no actual breach of a contract until the time 

specified therein for performance has arrived.’ [Citation.] By 

contrast, ‘an anticipatory breach of contract occurs when the 

contract is repudiated by the promisor before the promisor’s 

performance under the contract is due.’” (Hewlett-Packard Co. v. 

Oracle Corp. (2021) 65 Cal.App.5th 506, 549-550.) The Supreme 

Court explained, “if a party to a contract expressly or by 

implication repudiates the contract before the time for his or her 

performance has arrived, an anticipatory breach is said to have 

occurred.” (Romano, supra, 14 Cal.4th at p. 489; see Guerriri v. 

Severini (1958) 51 Cal.2d 12, 18 [a party “positively repudiates 

the contract by acts or statements indicating that he will not or 

cannot substantially perform essential terms thereof”].) 

Here, the purported oral agreement required Shakib and 

Namvar to personally and equally share certain unanticipated 

costs not addressed in the written Operating Agreement between 

the parties’ respective LLCs. These included costs from “the 

failure or revocation of permits or government approvals” and 

any litigation costs arising from the Project. The alleged oral 

agreement did not contain an express time for performance, but 

purportedly contemplated Shakib and Namvar would pay the 

unanticipated costs as they arose. According to Shakib, Namvar

initially complied with the oral agreement and later refused. 

Namvar argues the undisputed facts and all accompanying 

reasonable inferences demonstrate that in July 2016, more than 

two years before Shakib filed his Cross-Complaint, Namvar 

clearly repudiated the alleged oral agreement. 
12

1. Namvar’s July 2016 Emails Constituted an Immediate 

Breach of the Oral Contract3

Shakib argues Namvar’s July 2016 emails did not 

constitute a repudiation of the oral contract because the emails 

were not a “‘clear, positive, unequivocal refusal to perform.”’

(quoting Taylor v. Johnston (1975) 15 Cal.3d 130, 137). As 

support for this argument, Shakib notes Namvar only referred to 

the Operating Agreement in his July 2016 emails. Shakib 

suggests the emails demonstrate, at most, Namvar was refusing

to pay the additional costs through his LLC under the Operating 

Agreement, and ostensibly it is reasonable for us to infer Namvar 

might have honored his obligation to pay these same costs

personally, pursuant to their oral agreement. Alternatively, 

Shakib posits while Namvar was refusing to pay in July of 2016,

Namvar had not unequivocally ruled out the possibility of

reimbursing Shakib down the line. These inferences cannot

reasonably be drawn from Namvar’s words, particularly when 

read in the context of all the July 2016 emails from Namvar, 

Shakib and Jaffe. 

Any reasonable finder-of-fact reading the increasingly 

heated July 2016 written exchange would be hard-pressed to 

infer anything from Namvar’s emails other than his absolute, 

unwavering refusal to take responsibility, financial or otherwise, 

for the Project mishaps and the myriad costs and delays that 

3 Although we reference the oral contract alleged by Shakib, 

we are not making any findings as to whether such a contract 

existed or was breached. Rather, we consider the facts in the 

light most favorable to Shakib, as we must on appeal from a 

grant of summary judgment adverse to him. (See Soto v. Union 

Pacific Railroad Co. (2020) 45 Cal.App.5th 168.)
13

followed. (See Parker v. Walker (1992) 5 Cal.App.4th 1173, 1190 

[statute of limitations on oral contract began to run when 

defendant “refused to acknowledge” plaintiff’s entitlement under

the contract].) The costs that arose from the City’s revocation of 

all the Project’s permits and the accompanying litigation 

expenses fall squarely within the purported oral contract between 

Shakib and Namvar. Namvar’s refusal to pay those costs 

constituted a breach of an essential term of the agreement; 

indeed, the entirety of the oral agreement, according to Shakib,

was for Namvar and Shakib to personally share unanticipated 

costs that were not addressed in the Operating Agreement. 

Namvar expressed his position clearly when he told Shakib

and Jaffe, over the course of four emails in one day, that Shakib 

was the one responsible for the wrongful tree removal that 

caused the City to revoke the Project’s permits. Namvar 

considered the unauthorized tree removal to be a “bad act” as 

defined by the Operating Agreement and asserted Shakib “should 

pay to fix” the permitting problems, declaring “this should be a 

notice to [Shakib] to fix the situation with his own money.” 

Namvar reinforced his repeated refusals to share costs in his July 

2016 emails with a follow-up email nearly a month later. 

Namvar reiterated his position that Shakib must cure his “bad 

acts” and again threatened Shakib with litigation if he failed to 

comply.

The fact that Namvar only referenced the Operating 

Agreement when he emphatically denied responsibility for the 

Project’s peril and associated litigation costs does not create a 

reasonable inference that he was leaving the door open to 

personally pay those costs in the future. In addition, it would 

have made no sense for Namvar to reference the oral agreement 
14

in his emails because Namvar claims no such oral agreement 

existed. Similarly, Shakib’s assertion that Namvar might have 

later paid the unanticipated costs through White Water is not 

only an unreasonable inference from the emails, but it strains 

credulity given Shakib alleged in his Cross-Complaint that 

Namvar “was responsible for, and personally directed” White 

Water as a “shell entity” that he solely owned and controlled. 

Shakib also maintains Namvar’s statements were not 

unequivocal because Namvar wrote, “I have not decided what I 

want to do.” Shakib contends Namvar’s statement lends credence 

to the “equally reasonable” inference that Namvar was “still in 

the process of considering his options.” Shakib’s argument takes 

Namvar’s statement out of context. Read in the totality of their 

email exchange, Namvar’s statement refers to his indecision as to 

whom he ought to sue for damages, not whether he ought to 

share in the litigation costs to rectify the tree-cutting and Water 

Board issues.

4 In his prior sentence, Namvar states, “the way I c 

[sic] this I can spend the money and go after 

[Shakib]/envicom/and the water board and have a better chance 

of getting damages, rather than going after the city??” Namvar’s

clause, immediately after “I have not decided what I want to do,” 

reads, “but this should be a notice to [Shakib] to fix the situation 

with his own money as he is supposed to under the operating 

4 Namvar writes: “as far as water board 3 things could 

happen [¶] A-We can go after water board because they charged 

me a lot of money and then pulled the permit [¶] B- Enviocom did 

something wrong and got us the permit based in their wrong 

calculations which I could go after them [¶] C- [Shakib] triggered 

the stoppage of the job by violating the permit [¶] IN EITHER 

CASE I AM NOT AT FUALT [sic] AND WILL AND CAN PROVE 

IT very easily[.]”
15

agreement.” In these emails, Namvar also delineated his 

grievances against Shakib and his rationale for why Shakib alone 

should pay: “1- [Shakib] was responsible for the development of 

this project [¶] 2- [Shakib] was the one responsible to protect the 

trees and their cuttings [¶] 3- it happened during his watch and it 

was his responsibility to make sure it doesn’t happen. [¶] 4- he 

should pay to fix this one issue since he was the one who caused 

it [¶] 5- if the permit is reinstated, then he can go fwd [sic] and

developed [sic] this property [¶] 6- I had absolutely nothing to do 

with the cutting that tree that led to revoking the permit . . . 

[¶]13- the tree situation is more than clear and all the facts are 

undisputed.” Nothing in Namvar’s emails suggests lingering 

indecision regarding his potential future financial contribution to 

fix a “mistake” for which he believed Shakib was solely 

responsible. In July 2016 Namvar’s only apparent uncertainty 

was regarding which party or entity he would “go after” for 

damages. 

Shakib’s attorney, Jaffe, recognized the lack of ambiguity in 

Namvar’s refusal and repeatedly asked him to reconsider his 

position.5 In addition, in his deposition testimony, Shakib 

confirmed that Namvar’s refusal to share costs was unambiguous 

and unwavering. Shakib testified that “from some point 

[Namvar] said: I’m not going to pay a dime. And he walked 

away. I’m paying all the money now. And instead of he come 

help [sic] he hired you [Namvar’s attorney] to beat me up.” 

Shakib testified this exchange occurred when Namvar told 

Shakib, “‘You cut the trees. Your fault, you got to pay.’” This 

aligns with the content of Namvar’s July 2016 emails, sent a few 

5 All of Namvar’s emails, including his follow-up in August 

2016, make clear he did not change his mind. 
16

weeks after the City revoked all the Project’s permits, in which 

Namvar repeatedly referenced the wrongful cutting of the 

protected trees as his main point of contention, stating “this is all 

[Shakib’s] doing cutting the wrong tree not mine,” and that he 

had initially let the Water Board issues go because “I figured it 

will pass, but when I found out that he cut the wrong tree, that 

was a big issue.” Collectively, Namvar’s words and conduct 

clearly demonstrate that, under no uncertain terms, he would not 

pay the costs demanded by Shakib⎯not in July 2016 and not 

ever. 

2. Namvar’s July 2016 Refusal To Share Costs Was an 

Immediate Breach that Triggered the Statute of 

Limitations 

Relying on Romano, Shakib contends even if Namvar 

repudiated the oral contract in July 2016, the statute of 

limitations was not triggered because any such repudiation was 

merely anticipatory (supra, 14 Cal.4th at pp. 488-489.) Shakib’s 

reliance is misplaced. Romano was a wrongful termination case 

in which the plaintiff’s employer told him he would be terminated 

at some time in the future. The court held the employer’s 

conduct was a prospective breach, and the statute of limitations 

on the employee’s breach of contract claim did not begin to run 

until the employee’s actual termination, over two years later,

during which time he continued to work for the employer and 

receive his salary. (Id. at p. 487.) Namvar’s breach, unlike the 

employer’s in Romano, was not anticipatory because it was not

before the time for performance occurred; Namvar’s breach was

immediate, unequivocal and concurrent with his July 2016 

emails.
17

Shakib argues the time to perform had not arisen in July 

2016 because there were not “any facts to show when [Namvar] 

was called upon to share in, or reimburse, costs incurred 

pursuant to the Oral Agreement.” The context and content of the 

parties’ emails belie Shakib’s assertion. While it is true their oral 

agreement did not include an express time for performance (in 

part because “unanticipated” costs are by definition temporally 

and substantively uncertain), “it is a well-established principle of 

contract law that ‘[i]f no time is specified for the performance of 

an act required to be performed, a reasonable time is allowed.”’ 

(The McCaffrey Group, Inc. v. Superior Court (2014) 224 

Cal.App.4th 1330, 1351, citing Civ. Code § 1657 [“If no time is 

specified for the performance of an act required to be performed, 

a reasonable time is allowed. If the act is in its nature capable of 

being done instantly—as, for example, if it consists in the 

payment of money only—it must be performed immediately upon 

the thing to do done being exactly ascertained”].) “‘“What 

constitutes a reasonable time is a question of fact. . . . ,’” which 

depends on ‘“the situation of the parties, the nature of the 

transaction, and the facts of the particular case.’”” (The 

McCaffrey Group, Inc., at p. 1351.) 

At the time of the parties’ July 2016 predicament, as

evidenced through their undisputed emails, the reasonable time 

for performance was immediate. The exchange began with an 

email from Mitchell to Namvar and Shakib informing them 

counsel for the Water Board “would respond within the next few 

weeks.” Namvar answered, “Nxt [sic] few WKS might b [sic] too 

late, because our grading permit will expire[.]” Shakib replied,

“[Namvar] we need attorney now” and Namvar responded, “Then 

go get one, this is your doing and you need to fix it.” 
18

The parties’ exchange shows they recognized an 

unanticipated cost had arisen: They needed an attorney to rectify 

their permitting quandary immediately before it was “too late.” 

Namvar immediately refused to contribute, as evidenced by the 

July and August 2016 emails. As Shakib testified, Namvar 

abruptly stopped contributing costs and told Shakib, “you cut the 

trees,” and just “walked away.” The nature of this real estate 

development Project demonstrates time was of the essence if 

permits were at risk⎯not just immediately but for five years. 

Namvar’s follow-up email a few weeks later suggested the time 

for performance (i.e., to hire an attorney and begin fixing the 

permit predicament) had already passed because Namvar 

demanded information regarding “what steps you are taking to 

cure these Bad ACTS” and wanted “to make sure you are on top 

of this to protect our permits and reinstate them.” In July 2016,

Namvar’s refusal to share in the costs that were urgently needed 

to prevent the Project from being halted indefinitely constituted 

an immediate, material breach of the oral contract. 

Shakib further contends, again quoting Romano, that 

“whether the breach is anticipatory or not, when there are 

ongoing contractual obligations the plaintiff may elect to rely on 

the contract despite the breach, and the statute of limitations 

does not begin to run until the plaintiff has elected to treat the 

breach as terminating the contract.” (Romano, supra, 14 Cal.4th 

at p. 489.) While Shakib does not flush out the concept of 

continual contractual obligations or its applicability here, we 

recognize successive breaches can arise from a single contract 

with continuing obligations. (See Aryeh v. Canon Business 

Solutions, Inc. (2013) 55 Cal.4th 1185, 1199 [noting the doctrine 

generally applies to recurring obligations arising under an 
19

ongoing duty].) Here, the costs contemplated by the oral 

contract, if any, were not recurring as they were “not 

anticipated.” 

In Boon Rawd Trading Intern. Co., Ltd. v. Paleewong 

Trading Co., Inc. (N.D.Cal. 2010) 688 F.Supp.2d 940, 949, the 

district court, applying California law, rejected an argument 

similar to that posed by Shakib and found that the holding in 

Romano should not be used to allow a plaintiff to ignore an actual 

and immediate breach of an “open-ended” contract with “no 

specific point in time—or ‘time for performance”’ because a 

plaintiff could indefinitely toll the statute of limitations until 

he or she “elected to treat the breach as terminating the contract

. . . .” The Boon Rawd court recognized such a rule could allow a 

plaintiff to wait 50 years to file an action and then collect 50

years of damages: “This is not the law in California, and not the 

rule contemplated by Romano. It would lead to absurd and 

inequitable results.” (Ibid.) It is equally untenable here, where 

Namvar’s breach was immediate and complete in July 2016.

6

6 In Shakib’s view, “[t]hus, as a matter of law . . . the statute 

of limitations did not begin to run until the last [unanticipated] 

shared expense was incurred . . . .” Nearly from its inception the 

Project was mired in permitting and other legal challenges. As a 

result, the timing of the final unanticipated shared expense was

unknown then and perhaps is unknown still. 
20

DISPOSITION

The judgment is affirmed. Namvar is to recover his costs 

on appeal. 

WISE, J. *

We concur:

PERLUSS, P.J.

FEUER, J. 

* Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.