The relatively recent decision in Jogani v. Jogani (2026) 118 Cal. App. 5th 823 provides a series of lessons for real estate litigators and trial attorneys.  This article will focus on how jury instructions assisted in filling a gap of missing documentation and assist in a significant victory at trial.

The Jogani brothers built one of the largest privately held apartment portfolios in Southern California — more than 170 buildings, worth roughly a billion dollars — without ever signing a partnership agreement. The venture rested on an oral understanding and years of family trust. That worked until one brother, who controlled the entities holding title, denied the partnership had ever existed and claimed the empire as his own.  The parties seeking to affirm the partnership are referred to as Plaintiffs.

The Brother denying the partnership held all the cards, and all the written documentation showing he was the sole owner.  Without a written partnership agreement, the partnership had to be proven in other ways.

While the case was filed in 2003, it was not resolved until years later.  In May 2024, the court entered judgment against Haresh totaling approximately $6.85 billion, which included the amounts awarded by the jury as well as prejudgment interest.

This blog focused on relying on the lack of documentation produced in the case for the early years of the partnership.  Specifically, one key issue on appeal was how Plaintiffs used the very lack of records against the party who withheld them.  In particular, CACI No. 204 permits a jury to consider whether a party intentionally concealed or destroyed evidence.  This instruction is based on Evidence Code § 413.

The instruction and issue stemmed from an earlier discovery order requiring pre-2011 records to be produced in the case, which allegedly were not produced.  The trial court balanced the parties’ needs by permitting presentation of concealment of records but without allowing publication or admission of the discovery order in court.

THE DISCOVERY ORDER AND THE MISSING RECORDS

The issue arose from the practice of deposing the person most qualified (PMQ) of various entities as it pertained to records.  The notice of deposition requested records.  A dispute arose over whether pre-2011 records were required, and the law and motion judge ordered them produced.

When the production allegedly arrived, the Plaintiffs’ expert accountant reviewed the records to confirm what was or was not produced.  This provided a neutral foundation for testimony at trial.

The entities’ PMQ later testified he had never been tasked with producing any pre-2011 documents, and that entity-level financial statements were overwritten with each new year’s data.

This then became the foundation for use of the jury instruction.

THE JURY INSTRUCTIONS THAT MADE THE MISSING DOCUMENTS COUNT

At trial the primary Plaintiff, Shashi, was permitted to testify that the orders required the pre-2011 documents and that the production had not included them.  The order however was not presented to the jury or admitted as an exhibit at trial.  The court’s approach even allowed defense witnesses to dispute whether the order required pre-2011 production.  The trial court’s goal was clearly to avoid any prejudicial impacts of these discovery orders in either direction.  By doing so the trial court built in a possible outcome where the records were not produced due to a misunderstanding.

Ultimately, the primary instruction at issue was given to the jury:  CACI No. 204, California’s standard willful suppression instruction, which states:

“You may consider whether one party intentionally concealed or destroyed evidence.  If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”

THE RULING ON APPEAL

On appeal from the resulting judgment, the defendants attacked this evidence on a number of grounds; the one most worth discussing was a claim that the jury instruction amounted to a sanction and required such a finding. The Court disagreed.  It was appropriate.  The instruction does not direct or mandate the jury make a negative inference.  Rather, it was the jury’s right to make that determination based on the evidence presented at trial.

Of note, in closing argument, the Brother denying the partnership focused heavily on the utter lack of documentation.  The jury was entitled to hear the evidence and determine pursuant to the instruction whether to apply it.  The Brother’s very trial strategy centered on documentation.  The jury understood the issues on records at the trial and was in the best position to determine whether to apply the instruction.

TAKEAWAYS

Jogani is a lesson in how a partnership that was never written down can still be proven.  A key challenge is documenting the partnership’s activity throughout the years it exists.  The partnership records often must be reconstructed.  And discovery issues, while the bane of all litigators’ existence, are often the foundation for key jury instructions that can turn a case in your favor years later.   Here, and in other cases, a prior discovery order violation is not a condition to apply the jury instruction.  And for the opposing party, the order must be taken seriously and not discounted in any manner.  Finally, do not, however, rely too heavily on prior discovery orders because trial courts are loath to relitigate such matters at trial or admit them into evidence.

Randy Sullivan is a partner at Patton Sullivan Brodehl LLP specializing in business and real estate litigation. Learn more at https://psblegal.com/randy-sullivan.html

Randy Sullivan has taken several partnership, LLC, and accounting-related cases to trial and is well versed in these strategies.