                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 03 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


E. BERTITA TRABERT GRAEBNER,                     No. 13-16992
individually and as Trustee of the El Nora
L. Trabert Irrevocable Trust; et al.,            D.C. No. 3:12-cv-01694-WHA

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
 v.

WM. PAGE & ASSOCIATES, INC., a
foreign corporation and WILLIAM
SCOTT PAGE, an individual,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                    William H. Alsup, District Judge, Presiding

                    Argued and Submitted November 20, 2015
                            San Francisco, California

Before: MELLOY,** IKUTA, and HURWITZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
      Bertita Trabert Graebner, Tallie Trabert, and Vernon Trabert appeal the

district court’s entry of summary judgment in favor of defendants Wm. Page &

Associates, Inc. and William Scott Page (“the Page defendants”) on statute of

limitations grounds. We have jurisdiction pursuant to 28 U.S.C. § 1291.

      Based on Tallie Trabert’s letter and email correspondence, there is no

genuine dispute of material fact that she was on inquiry notice in 2008 due to her

actual suspicion of fraud by the Page defendants. See Fox v. Ethicon Endo-

Surgery, Inc., 35 Cal. 4th 797, 807 (2005). Vernon Trabert and Bertita Graebner

were aware of facts that would place a reasonable person on inquiry, specifically

that Tallie Trabert suspected fraud and that their viatical investments had failed to

perform as promised, and therefore were also on inquiry notice. See Jolly v. Eli

Lilly & Co., 44 Cal. 3d 1103, 1110–11 (1988). Once the plaintiffs were on inquiry

notice, they were “charged with knowledge of facts that would have been

discovered” by a reasonable investigation, Lee v. Escrow Consultants, Inc., 210

Cal. App. 3d 915, 921 (1989), notwithstanding any reassurances made by the

Trabert family attorney, Michael James.

      Although the plaintiffs were on inquiry notice in 2008, there is a genuine

issue of material fact as to whether they conducted a reasonable investigation and

what such an investigation would have revealed. A rational jury could conclude


                                           2
that a reasonable investigation would not have revealed that the Page defendants

knew or should have known of the problems in the viatical industry at the time

they induced the plaintiffs to make their investment. The only evidence in the

record on this point is an excerpt from a 1998 book on the viatical industry, which

in turn cited a handful of additional public sources. Viewed in the light most

favorable to the plaintiffs, this evidence is insufficient to establish that the

plaintiffs’ causes of action accrued more than three years before they filed this suit.

See, e.g., Tucker v. Baxter Healthcare Corp., 158 F.3d 1046, 1050 (9th Cir. 1998);

Cal. Code Civ. P. § 338(d).

       REVERSED AND REMANDED.




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