Filed 3/2/15 Paregian v. Rippey CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




SAM PAREGIAN,                                                                                C073238

                   Plaintiff and Appellant,                                       (Super. Ct. No. 39-2012-
                                                                                  00283778-CU-FR-STK)
         v.

DENNIS RIPPEY et al.,

                   Defendants and Respondents.




         In 2002, defendant Dennis Rippey gave plaintiff Sam Paregian a check for more
than $120,000 as compensation for agricultural products. Paregian lost the check and
asked for a new one. At first, Rippey claimed that adjustments needed to be made but
then, in 2004, claimed Paregian had already cashed the check. In 2011, Paregian found
the uncashed check and filed this action for financial elder abuse, fraud, intentional
infliction of emotional distress, and other causes of action. The trial court, however,
sustained Rippey’s demurrer, finding that the causes of action were time-barred.


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       On appeal, Paregian contends the trial court misapplied the discovery rule and
equitable estoppel. Finding no error, we affirm.
                                     BACKGROUND
       “It is well established that a demurrer tests the legal sufficiency of the complaint.
[Citations.] On appeal from a dismissal entered after an order sustaining a demurrer, we
review the order de novo, exercising our independent judgment about whether the
complaint states a cause of action as a matter of law. [Citations.] We give the
[complaint] a reasonable interpretation, reading it as a whole and viewing its parts in
context. [Citations.] We deem to be true all material facts that were properly pled.
[Citation.] We must also accept as true those facts that may be implied or inferred from
those expressly alleged. [Citation.] We may also consider matters that may be judicially
noticed, but do not accept contentions, deductions or conclusions of fact or law.
[Citation.]” (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118
Cal.App.4th 861, 869-870; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
       With that standard in mind, we recount the background of this case.
       Paregian claims in his opening brief that he filed a complaint against Rippey on
July 13, 2012, but he provides no record citation for this claim. (See Cal. Rules of Court,
rule 8.204(a)(1)(C), requiring citation to record for each matter referenced.) In fact, the
first document in the clerk’s transcript is the first amended complaint filed on November
5, 2012. Since this appeal focuses on whether Paregian’s causes of action were time-
barred, it is important to establish when he initiated this action. However, since the
appeal fails even assuming that his complaint was filed on July 13, 2012, we will
overlook the failure to cite to the record and consider that filing date. (Cal. Rules of
Court, rule 8.204(e)(2)(C).)
       In the first amended complaint, Paregian alleged five causes of action against
Dennis Rippey and Lodi Vinters, Inc. (collectively, Rippey): (1) financial elder abuse,



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(2) fraud, (3) money had and received, (4) account stated, and (5) intentional infliction of
emotional distress.
       On February 1, 2002, Rippey gave Paregian a check for $121,662.28 for
agricultural products. Paregian misplaced the check, and asked Rippey to reissue it.
From March 2002 to April 2004, Rippey claimed that he needed to make adjustments to
the amount owed to Paregian before he could reissue the check. Then, in May 2004, and
after that date, Rippey claimed that Paregian had already cashed the check and that
Rippey no longer owed Paregian money. In January 2011, almost seven years after
Rippey claimed he no longer owed money, Paregian found the uncashed check in his own
storage. After Paregian found the check, he demanded payment from Rippey, but Rippey
rejected the request.
       Concerning the reasons for the delay in bringing the action, which are relevant to
Paregian’s attempt to apply the discovery rule to preserve his action, Paregian alleged
that at the time of the original transaction he was 75 years old. He was “an elderly man
with a diminished memory, and diminished capacity to handle his complicated affairs,
including a vulnerability to trusting representations that the Elder Abuse statute is
designed to protect elders against.” In the 10 years from the original issuance of the
check and Paregian’s discovery of the check in his own possession, he “oversaw and
solely managed a substantial farming operation, a dentist practice . . . , a winery
development partnership with the help of two partners, the sale of commercial properties,
the entitlement of commercial properties and other business interests.” He had “scores of
accounts and hundreds of payment receipts exceeding $100,000 over the relevant
period.” Paregian had dealt with Rippey and trusted him. And Paregian was involved in
a multi-million-dollar property lawsuit which caused “severe stress, confusion, enormous
time constraints and pressure, adding stress and further diminishment in memory, time
available and competency.” Rippey refused to tell Paregian how much the check was for



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and when he gave it to Paregian, which prevented Paregian from checking his records to
confirm he had received it.1
       Rippey demurred to the first amended complaint, and the trial court sustained the
demurrer without leave to amend. It found that each cause of action was barred by the
applicable statute of limitations and that Rippey was not equitably estopped from
asserting the statutes of limitations. The trial court also found that Paregian had not
pleaded a cause of action for intentional infliction of emotional distress because the
conduct was not extreme and outrageous.
       Judgment was entered based on the sustaining of the demurrer.
                                       DISCUSSION
                                              I
                               Elder Abuse Cause of Action
       Welfare and Institutions Code section 15657.7 prescribes the statute of limitations
for elder abuse and bars an action commenced more than four years after the plaintiff
discovers or should have discovered the abuse. “An action for damages . . . for financial
abuse of an elder . . . shall be commenced within four years after the plaintiff discovers
or, through the exercise of reasonable diligence, should have discovered, the facts
constituting the financial abuse.” (Welf. & Inst. Code, § 15657.7.) To determine
whether the trial court properly sustained the demurrer as to this cause of action, we must
decide whether the facts pleaded by Paregian established that he discovered, or should



1       Paregian cites several “facts” in the body of his opening brief that are not found in
the record. For example, he claims he “had no recollection of a deposit and couldn’t find
a record of it. However, [] Rippey insisted on several occasions that the deposit had in
fact been made and based upon [Paregian’s] trust in [Rippey], [Paregian] began to believe
that the deposit had in fact been made and he made some mistake in the deposit.”
Paregian’s citation to the record does not support this factual statement. We therefore
ignore it and similar unsupported statements of fact. (Cal. Rules of Court, rule
8.204(a)(1)(C); City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.)

                                              4
have discovered through exercise of reasonable diligence, the facts constituting financial
elder abuse no earlier than July 2008, which is four years before he filed his complaint.
We conclude Paregian’s elder abuse cause of action is barred because he should have
discovered the facts constituting financial abuse before July 2008.
       The Supreme Court explained the standard we apply when determining whether a
plaintiff discovered or should have discovered the basis for the action. (Fox v. Ethicon
Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807-809 (Fox).)
       “The discovery rule only delays accrual until the plaintiff has, or should have,
inquiry notice of the cause of action. The discovery rule does not encourage dilatory
tactics because plaintiffs are charged with presumptive knowledge of an injury if they
have ‘ “ ‘information of circumstances to put [them] on inquiry’ ” ’ or if they have
‘ “ ‘the opportunity to obtain knowledge from sources open to [their] investigation.’ ” ’
[Citation.] In other words, plaintiffs are required to conduct a reasonable investigation
after becoming aware of an injury, and are charged with knowledge of the information
that would have been revealed by such an investigation.
       “The Legislature, in codifying the discovery rule, has also required plaintiffs to
pursue their claims diligently by making accrual of a cause of action contingent on when
a party discovered or should have discovered that his or her injury had a wrongful cause.
[Citations.] This policy of charging plaintiffs with presumptive knowledge of the
wrongful cause of an injury is consistent with our general policy encouraging plaintiffs to
pursue their claims diligently. [Citation.]
       “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a]
plaintiff whose complaint shows on its face that his claim would be barred without the
benefit of the discovery rule must specifically plead facts to show (1) the time and
manner of discovery and (2) the inability to have made earlier discovery despite
reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of



                                              5
delayed discovery, the court places the burden on the plaintiff to ‘show diligence’;
‘conclusory allegations will not withstand demurrer.’ [Citation.]
        “Simply put, in order to employ the discovery rule to delay accrual of a cause of
action, a potential plaintiff who suspects that an injury has been wrongfully caused must
conduct a reasonable investigation of all potential causes of that injury. If such an
investigation would have disclosed a factual basis for a cause of action, the statute of
limitations begins to run on that cause of action when the investigation would have
brought such information to light. In order to adequately allege facts supporting a theory
of delayed discovery, the plaintiff must plead that, despite diligent investigation of the
circumstances of the injury, he or she could not have reasonably discovered facts
supporting the cause of action within the applicable statute of limitations period.” (Fox,
supra, 35 Cal.4th at pp. 807-809, fn. & italics omitted.)
        Here, a reasonable investigation soon after Rippey claimed the check was cashed
would have revealed that Rippey was lying. Even if he could not remember, Paregian
believed the check had not been cashed, as shown by his request to Rippey to issue a new
check. An investigation into his own records would have established that he had not
cashed the check. That his records were extensive does not excuse failing to undertake
an investigation. Therefore, through the exercise of reasonable diligence, Paregian would
have discovered the facts constituting financial elder abuse soon after Rippey lied in
2004. Applying the elder abuse statute of limitations, Paregian had to file this action by
2008.
        Paregian contends that the facts he alleged concerning delayed discovery establish
that he could not have discovered Rippey’s lie until he found the uncashed check in 2011.
He argues that, “given [his age] (78 in 2004) coupled with the various complex legal
matters (2 separate large business litigation suits in 2002 through 2009), various business
endeavors (operated at least 4 different business [sic] in 4 banks with a number of
accounts) and the high level of trust in [Rippey] based upon previous business dealings it

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is easy to see that despite a reasonable and diligent inquiry into the truth of [Rippey’s]
statements it was hard for [Paregian] to detect the fraud. [¶] Given [Rippey’s] 2004
misrepresentations that [Paregian] had already deposited the check in question over a
year prior without providing the date of deposit, the amount of deposit, which account the
allege [sic] deposit was placed into or which of [Rippey’s] entities the check was made
from, and the cognitive ability of [Paregian], [Paregian] was barred from reasonably
discovering that [Rippey] had failed to provide him with the money owed to him.”
         This scattergun argument fails. Paregian had to suspect in 2004 that Rippey was
lying when Rippey’s delaying tactic went from claiming that adjustments had to be made
to claiming that the check had already been cashed. At that point, reasonable diligence
required Paregian to review his records, even if, because of his wide-ranging business
ventures, those records were extensive and complex, to determine whether Rippey was
lying.
         Paregian’s age, by itself, did not excuse his duty of inquiry. On the facts stated in
the first amended complaint, neither did his cognitive abilities. In the complaint,
Paregian alleged that he “was an elderly man with a diminished memory, and diminished
competency to hand his complicated business affairs, including a vulnerability to trusting
representations . . . .” A general allegation of diminished memory and competency is
insufficient to delay the running of the statute of limitations, which requires reasonable
diligence of a person engaging in his own varied business ventures.
         Paregian cites Ogier v. Pacific Oil & Gas etc. Corp. (1955) 132 Cal.App.2d 496
(Ogier) as authority for his contention that his age-related diminished capacity prevented
the running of the statute of limitations. In that case, the court held that the elderly
plaintiff’s delay in discovering the facts was reasonable given her confidential
relationship with the defendant. (Id. at p. 507.) The defendant in Ogier defrauded the
plaintiff by selling her interest in land that he told her falsely would potentially produce
oil. “[A]t the time of the transaction plaintiff was 75 years of age, had poor eyesight and

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a progressively declining physical condition, her faculties were impaired and she was
easily influenced by defendant [] in whom she reposed great trust and confidence; that he
deliberately sought her trust so that he could induce her to enter into the described
transactions; that he always saw her alone; that she accepted his word for everything and
that a confidential relationship existed between them . . . .” (Id. at p. 502.) The court
held: “Plaintiff’s allegations of the existence of the fiduciary relationship between her
and [defendant], her age and condition and the other circumstances of the case, were
sufficient to account for her failure to discover the true facts, until the dates alleged. Her
causes of action did not accrue until the discovery of such facts. [Citation.] She alleged
that because of some transaction she had with [defendant] in October or November, 1952
(a transaction not here involved) she began to suspect that she had been imposed upon.
She thereupon employed an attorney to investigate for her and upon his reporting to her
the results of his investigation she first learned the true facts.” (Id. at p. 507.)
       Ogier is distinguishable. In that case, the court found a confidential relationship
existed between the plaintiff and defendant. Here, although Paregian alleged that he
trusted Rippey, there was no confidential relationship. As alleged, the relationship
between Paregian and Rippey consisted of no more than arms-length business
transactions. Also, in Ogier, the plaintiff had an attorney investigate when she had
reason to suspect the fraud. That investigation led to discovery of the fraud and filing of
the lawsuit. Here, Paregian should have suspected wrongdoing in 2004, when Rippey
claimed the check had been cashed. Yet no investigation took place. The plaintiff in
Ogier acted in a reasonably diligent manner, while Paregian did not.
       Accordingly, Paregian’s first amended complaint did not allege facts sufficient to
establish that the statute of limitations on an elder abuse cause of action had not run when
he initiated this action.




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                                              II
                                   Fraud Cause of Action
       Paregian contends that his fraud cause of action was not time-barred because
(1) he did not become aware of Rippey’s fraud until he found the check in 2011 and
(2) Rippey committed a continuing fraud over several years. We conclude the contention
is without merit.
       Paregian’s fraud cause of action is governed by Code of Civil Procedure section
338, which provides that the statute of limitations for a fraud cause of action is three
years. The statute also provides that “[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.” (Code Civ. Proc. § 338, subd. (d).)
       The Supreme Court’s formulation of the discovery rule in Fox, detailed above,
applies to fraud causes of action. (Cansino v. Bank of America (2014) 224 Cal.App.4th
1462, 1472.) Therefore, Paregian’s contention that his fraud cause of action is not time-
barred because he did not discover the fraud until he found the check is without merit
because a reasonable investigation would have uncovered the fraud.2
       Paregian protests that Rippey assured him on numerous occasions that Paregian
was being treated fairly. But that is the nature of fraud. When Rippey changed his
position to claiming that Paregian had cashed the check, Paregian should have
investigated.
       Paregian’s contention that his fraud cause of action was not time-barred because
Rippey committed a continuing fraud is stated only briefly (in one sentence), with no



2      Paregian cites a 1929 case from the Ninth Circuit Court of Appeals (Sacramento
Suburban Fruit Lands Co. v. Johnson (1929) 36 F.2d 948) in support of his contention.
We are not bound by decisions of the Ninth Circuit, especially in matters pertaining to
California law. (Roskind v. Morgan Stanley Dean Witter & Co. (2000) 80 Cal.App.4th
345, 355.) In any event, the California authorities cited above state the applicable law.

                                              9
reasoned argument, and is not supported by any citation to authority. Therefore, he has
forfeited that contention. (Cal. Rules of Court, rule 8.204(a)(1)(B); Valov v. Department
of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.)
                                               III
               Money Had and Received and Account Stated Causes of Action
         Making the same argument about the discovery rule that he made in discussing the
other causes of action, Paregian contends that his causes of action for money had and
received and for account stated were not time-barred. Again, we refer to our discussion
above, and we conclude that Paregian’s causes of action for money had and received and
for account stated are time-barred.
                                               IV
                             Emotional Distress Cause of Action
         Citing another federal opinion, this one unpublished (Guidi v. Stryker Corp.
(2005) 120 Fed.Appx. 45), Paregian claims that the two-year statute of limitations for a
tort cause of action (Code Civ. Proc., § 335.1) had not expired when he filed his
complaint because of California’s discovery rule. Our analysis above suffices on this
issue.
         In addition to its conclusion that Paregian’s cause of action for intentional
infliction of emotional distress was barred by the statute of limitations, the trial court also
concluded that the cause of action was without merit because the conduct alleged was not
extreme and outrageous. On appeal, Paregian asserts that Rippey’s conduct was
intentional, citing Spackman v. Good (1966) 245 Cal.App.2d 518, at page 530. This
assertion misses the point. The trial court found that the conduct was not extreme and
outrageous (see Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209 [conduct
must be extreme and outrageous]), not that it was unintentional. Accordingly, this
assertion is also without merit.



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                                               V
                                       Equitable Estoppel
       Paregian contends that Rippey should be equitably estopped from asserting that
the causes of action alleged in the complaint are time-barred. We conclude the trial court
properly found that equitable estoppel did not apply because Paregian was not justifiably
ignorant of the true state of facts.
       “ ‘ “One cannot justly or equitably lull his adversary into a false sense of security,
and thereby cause his adversary to subject his claim to the bar of the statute of
limitations, and then be permitted to plead the very delay caused by his course of conduct
as a defense to the action when brought.” ’ [Citation.] But one of the elements required
for estoppel is justifiable ignorance of the true facts by the party claiming estoppel.”
(Kiernan v. Union Bank (1976) 55 Cal.App.3d 111, 116-117.)
       On the issue of equitable estoppel, the trial court wrote: “[Paregian’s] lack of
diligence cannot be overlooked. [Paregian] failed to do any investigation and now tries
to sue about eight years after he should have discovered that the check was not cashed.
[Paregian] knew as early as March 2002 that he had not been paid on a $121,662 check.
In spite of this, he waited over 10 years to commence this action.”
       We agree with the trial court that Paregian’s failure to investigate whether he had
cashed the check rendered unjustifiable his alleged ignorance of the fact that he had not
cashed it. Accordingly, his contention that Rippey should be equitably estopped from
asserting the statute of limitations is without merit.




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                                      DISPOSITION
       The judgment is affirmed. The parties will bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)



                                                      NICHOLSON            , J.



We concur:



      BLEASE                , Acting P. J.



      DUARTE                , J.




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