Filed 2/28/20 Smith v. Pedder 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Placer)

—-

GEOFFREY D. SMITH,

Plaintiff and Appellant,

v.

LORRAINE PEDDER,

Defendant and Respondent.

C088777

(Super. Ct. No. MCV0068316)

Plaintiff Geoffrey D. Smith appeals in propria persona from the trial court’s order sustaining defendant Lorraine Pedder’s demurrer without leave to amend. On appeal, plaintiff contends the trial court erred in concluding plaintiff’s financial elder abuse claims were barred by the applicable four-year statute of limitations. We will affirm.

I. BACKGROUND

On September 15, 2017, plaintiff filed suit against defendant, his sister, over the care and management of the estate of their uncle, Mario Riesco. In the operative pleading, the first amended complaint (complaint), plaintiff alleged that defendant engaged in financial elder abuse of Riesco and sought reconsideration of his petition in a separate action for conservatorship. He alleged that he first learned of the purported elder abuse from various events in 2011.

Defendant filed a demurrer to the complaint, arguing inter alia that the cause of action for financial elder abuse was barred by the statute of limitations. The limitations period for financial elder abuse is four years from the date the plaintiff discovered, or should by reasonable diligence have discovered, the facts constituting the financial abuse. (Welf. & Inst. Code, § 15657.7.) Plaintiff filed “objections” to the demurrer, contending that he “was not certain of all the allegations made in the [c]omplaint until this year” and “many of the allegations are ongoing.”

Following a hearing, the trial court sustained the demurrer without leave to amend. The court reasoned: “The verified allegations disclose that plaintiff was aware of the alleged financial elder abuse in 2011 in that (1) he warned defendant her conduct was abusive and (2) defendant achieved the object of her abuse (a trust naming her trustee and primary beneficiary; new agency documents granting her plenary control over plaintiff’s assets) in December 2011. . . . Defendant [sic] attempts to avoid the effect of the statute of limitations by alleging he had insufficient evidence to proceed prior to reading a confidential conservatorship investigation report in 2017 where Mario Riesco is reported to have stated that his 2011 trust was defendant’s idea. These allegations are insufficient in light of the unambiguous allegations of the [complaint].” The court denied leave to amend the complaint, concluding that plaintiff could not allege any additional facts that would show the limitations period had not expired. The court entered a judgment of dismissal.

II. DISCUSSION

Plaintiff argues that the demurrer on the elder abuse claim was erroneously sustained and leave to amend was erroneously denied. He contends that while he suspected the possibility of elder abuse in 2011, he did not have actual knowledge of the purported abuse until 2017 when he obtained a conservatorship investigation report.

The standard of review is well-established: “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’

[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) “ ‘When a complaint shows on its face that it is barred by a statute of limitations, a general demurrer may be sustained and a judgment of dismissal may be entered.’ ” (Barker v. Garza (2013) 218 Cal.App.4th 1449, 1454.) “ ‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.’ ” (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781 (Geneva Towers).)

The statute of limitations for financial elder abuse is set forth in section 15657.7, which provides: “An action for damages . . . for financial abuse of an elder or dependent adult, as defined in Section 15610.30, 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.”

In his complaint, plaintiff alleged that he “did not have enough evidence to bring this lawsuit forward until Mario Riesco made a statement to the [c]ourt [i]nvestigator” indicating that creating a trust in defendant’s favor was defendant’s idea. However, plaintiff also alleged that in the summer of 2011, defendant told him several times that she wanted Riesco to create a trust. Specifically, he alleged that in July 2011, “[Defendant] again tried to make [Riesco] commit to a [t]rust and he stated in front of me, my wife and [defendant] he did not want a [t]rust and he had already designated how he wanted his estate distributed.” Plaintiff alleged he subsequently warned defendant that “her persistence could be considered [e]lder [a]buse.”

Plaintiff further alleged that in December 2011, during a visit with Riesco, he discovered that defendant had succeeded “in her efforts and got [Riesco] to do a Living Trust with [defendant] as the main beneficiary and first in line to be paid Trustee.”

Thus, according to the allegations on the face of the complaint, plaintiff discovered the facts constituting defendant’s alleged financial abuse in 2011 and waited until 2017 to file suit after he obtained additional evidence he believed would help strengthen his case. Waiting for additional evidence is not a proper ground to toll the statute of limitations, which is in place in part to protect against the loss of evidence. (Fox v. Ethicon Endo-Surger, Inc. (2005) 35 Cal.4th 797, 806 [reasoning that one purpose of a statute of limitations is to “give defendants reasonable repose, thereby protecting parties from ‘defending stale claims, where factual obscurity through the loss of time, memory or supporting documentation may present unfair handicaps’ ”].)

Accordingly, the face of plaintiff’s complaint shows an affirmative and clear defect that cannot reasonably be cured by amendment. (Geneva Towers, supra, 29 Cal.4th at p. 781.) We must affirm.

III. DISPOSITION

The judgment is affirmed. Plaintiff shall pay defendant’s costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

MURRAY, Acting P. J.

/S/

KRAUSE, J.