NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RYLAARSDAM, ACTING P. J.

Plaintiff Mark D. Peterson appeals from the order denying his motion to compel arbitration and the judgment entered after the court sustained the demurrers of defendants Alan J. Freisleben, Lily Chow, and Todd A. Picker without leave to amend. He contends the court erred in concluding his arbitration claims should have been made in an earlier arbitration proceeding and that his causes of action were barred by the applicable statutes of limitations. Finding no error, we affirm the order and judgment.

We granted plaintiff's request for judicial notice of various documents. Plaintiff also requests that we take judicial notice of the opening brief in the related case of Freisleben et al. v. Van Riper et al. (Mar. 18, 2011, G042825) (nonpub. opn.), which we deny as being unnecessary to our resolution of the issues on appeal.

FACTS AND PROCEDURAL BACKGROUND

This action arises out of the same basic facts as involved in the related case. It began when Peterson resigned from his law partnership Peterson, Picker, Chow & Freisleben, LLP (firm), in July 2003 and demanded an accounting and payment of money allegedly owed under the partnership agreement. The firm rejected the demand and the next year sued Peterson for damages and equitable and declaratory relief.

In response, Peterson petitioned for arbitration against the successor law firm of Picker, Chow & Freisleben (PCF) for breach of the firm's partnership agreement (2004 arbitration). He alleged that rather than pay or account for the sums owned to him, "the senior remaining partner, emotionally injured by . . . Peterson's withdrawal: (1) refuses to pay, (2) refuses to articulate a coherent reason for not paying, and, instead, (3) simply argues that the agreement is unfair." The firm also allegedly breached its obligations to him by failing to pay amounts due him as a withdrawing partner in the over 10 months after he resigned. In the event the firm was "`a dissolved partnership'" as indicated in its lawsuit against him, he was entitled to a different amount under the partnership agreement. If the dissolution was proper, he requested in his prayer for relief "the appointment of a receiver, a neutral person to oversee and implement the dissolution of the firm, including the payment to . . . Peterson of his share of profits which were taken during his absence by the remaining partners."

In January 2008, Picker started his own firm while Chow and Freisleben continued practicing together under the name of Chow & Freisleben, Inc. Seven months later, the arbitrator awarded Peterson almost $300,000 against PCF and Peterson petitioned to confirm the award. Shortly before the October hearing on the petition, PCF filed for bankruptcy.

In March 2009, Peterson sued defendants individually for breach of the partnership agreement, breach of fiduciary duty, conversion and unjust enrichment. The complaint alleged defendants breached their continuing contractual and fiduciary duties to him "[b]eginning in late 2003" but that a statute of limitations defense was unavailable because "(a) . . . Peterson's ability to proceed against these defendants ripened with the conclusion in October[] 2008[] of his pursuit for payment from the [f]irm[;] [¶] (b) [t]he breach by each defendant was not only the failure to remit . . . Peterson's share of the receipts in 2003 and 2004, but a continuing breach thereafter to pay him the money and/or to maintain adequate funds to pay him when he succeeded with the arbitration[;] [¶] (c) [a]ny arguable statute [of limitations] was tolled because each of the defendants concealed from . . . Peterson that the [f]irm, operated by the defendants, had not maintained reserves to pay him and, instead, drained all of the [f]irm's assets, including money which the [f]irm held in trust for him. . . . Peterson first learned of this wrongdoing in October[] 2008."

The next month, Peterson moved to compel arbitration of the claims in the complaint, again repeating that defendants breached the partnership agreement and failed to perform their duties beginning in 2003. Picker opposed the motion, contending Peterson waived any right to compel arbitration by unreasonably waiting over five years and filing a lawsuit, which was inconsistent with an intent to arbitrate and prejudiced Picker. In their joint opposition, Chow and Freisleben (Chow/Freisleben) similarly argued, among other things, Peterson waived any right to arbitration by filing the complaint. Defendants also demurred to the complaint, in part, on the grounds Peterson's causes of action were barred by the applicable statute of limitations.

The trial court denied the motion to compel arbitration, ruling Peterson waived any right to arbitrate by his delay and that he should have included the individual defendants in the 2004 arbitration. It also sustained defendants' demurrers without leave to amend on statute of limitations grounds because Peterson's causes of action "accrued in 2003, not when [Peterson] discovered his award against the partnership was worthless."

DISCUSSION

1. Sustaining of Demurrer Without Leave to Amend

a. Standard of Review

Peterson asserts the appropriate standard of review from the court's ruling is de novo. He is partially correct. On appeal, we review the trial court's sustaining of a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law and applying the abuse of discretion standard in reviewing the trial court's denial of leave to amend. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) The plaintiff bears the burden of proving the court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) A demurrer properly may be sustained and leave to amend denied if the action is barred by the statute of limitations. (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 802.)

b. Statute of Limitations

The statutes of limitations for Peterson's causes of action are four years for breach of contract and breach of fiduciary duty (Code Civ. Pro., §§ 337, subd. 1, 343; (all further statutory references are to this code); and three years for conversion and unjust enrichment (§§ 338, subds. (c)(1), (d)). Defendants assert these limitations periods accrued by 2003, when Peterson resigned from the firm and was denied his requested compensation, and no later than 2004, when the firm sued him and he petitioned for arbitration.

Peterson acknowledges that "if [defendants] are correct, then the instant case, filed March 10, 2009, is barred by the applicable statutes of limitations." But he contends they are wrong because the discovery rule applies to each cause of action. (Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 561-562 [breach of fiduciary duty and conversion based on fraudulent concealment]; Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 119-120 [breach of contract]; F.D.I C. v. Dintino (2008) 167 Cal.App.4th 333, 350 [unjust enrichment based on mistake or fraud]; § 338, subd. (d).) Under that rule, a cause of action accrues when the plaintiff discovers, or through reasonable diligence could have discovered, the injury and its cause. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 826.)

Peterson contends the statutes of limitations did not begin to run until he knew defendants "committed some wrong in their individual capacities" and it was not until the bankruptcy that he ascertained defendants had drained the firm's assets, failed to keep reserve funds, "converted his money" and unjustly enriched themselves. But his complaint belies his claims.

Peterson's complaint alleges defendants breached their continuing contractual and fiduciary duties "to: (a) collect and forward receipts to . . . [him] as they were collected, (b) . . . maintain in trust any such funds they did not pay to him or adequate reserves in an equal sum, and (c) . . . pay . . . [him] the amount he was entitled to when that sum was ascertained" "[b]eginning in late 2003 and extending through late 2008 . . . ." Additionally, "the distributions by the defendants to themselves in late 2003 and 2004 and thereafter of money which belonged to and was owed to . . . Peterson were ongoing breaches by each of them of sections [of the partnership agreement.] Their failure to maintain money in reserve to pay . . . Peterson was another ongoing breach which continued at least until they bankrupted the [f]irm . . . ." Among other things, Peterson requested attorney fees because "defendants' continuous refusal since 2003 to pay [him] his entitlement under the [a]greement compelled him to engage counsel . . . ."

These allegations establish that Peterson knew of his injury and its cause by 2004 at the latest. By then, he was aware defendants had breached their fiduciary and contractual duties to him, converted his funds to their own use, and were unjustly enriched. At the very least, such knowledge imposed on him "`a duty to investigate further and [he] is charged with knowledge of matters which would have been revealed by such an investigation.' [Citation.]" (Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 740.) He failed to do so and his complaint, filed in 2009, is time-barred.

Peterson argues defendants concealed their conversion of his money, and the statutes of limitation did not begin to run, until "[t]he bankruptcy filing[, which] changed everything, because at that point [he] was officially notified that the [f]irm had nothing left to give, not just that its partners disputed their legal obligation to give anything to [him]." But his complaint alleged that in 2003 and 2004 defendants had distributed to themselves money that belonged to him. And in his 2004 arbitration claim, which was included as an exhibit to documents of which judicial notice was requested in the trial court and is part of the record on appeal, he requested, among other things, a receiver to oversee the firm's dissolution "including the payment to [him] of his share of profits which were taken during his absence by the remaining partners." Where, as here, "the fact of injury and the identity of the party responsible for it are known, the failure to discover some or most of the resulting damage until later will not toll the running of the statute. [Citations.]" (Howe v. Pioneer Mfg. Co. (1968) 262 Cal.App.2d 330, 340-341.) Peterson cites no authority to support his assertion his causes of action were tolled until he discovered whether funds were available or reserved to satisfy his arbitration award.

Peterson maintains he had no duty to act until the bankruptcy because defendants were his fiduciaries. "`"[T]he rule is that the statute of limitations does not run where the parties occupy a fiduciary relationship toward each other, so long as such relationship is not repudiated."' [Citations.]" (Estate of Seifert (2005) 128 Cal.App.4th 64, 68.) Here, the record shows defendants repudiated their fiduciary duties to Peterson in 2003 and 2004 by allegedly refusing to pay him what he was owed upon leaving the partnership, distributing to themselves money belonging to him, and "taking" his profit shares. Based on these allegations, Peterson had no reasonable basis for believing defendants were acting as his fiduciaries or holding the money in trust.

Additionally, even where a fiduciary relationship exists, a plaintiff's duty to inquire is not entirely eliminated. Although such duty "may arise later by reason of the fact the plaintiff is entitled to rely upon the assumption that his fiduciary is acting in his behalf . . ., once the plaintiff becomes aware of facts which would make a reasonably prudent person suspicious, the duty to investigate arises and the plaintiff may then be charged with knowledge of facts which would have been discovered by such an investigation [citation]." (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 131; see also Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875.) "`The fact that a confidential . . . relationship exists does not excuse a party who has notice of facts from investigating those facts. If he fails to pursue those facts of which he has notice, he is nevertheless held to have knowledge of each and every fact that he would have discovered had he pursued the facts [of which] he did have knowledge . . . ." (Bedolla v. Logan & Frazer, supra, 52 Cal.App.3d at p. 131, fn. 12, italics omitted.) The facts alleged in the complaint and the 2004 arbitration claim, at the very least, gave rise to a duty by Peterson to investigate.

Bennett v. Hibernia Bank, supra, 47 Cal.2d 540, and Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, cited by Peterson, do not persuade us otherwise. The complaints in those cases alleged the plaintiffs had no timely knowledge of the defendants' malfeasance. (Bennett v. Hibernia Bank, supra, 47 Cal.2d at p. 549; Lee v. Escrow Consultants, Inc., supra, 210 Cal.App.3d at p. 919.) Here, in contrast, Peterson specifically alleged his knowledge that defendants' wrongful acts began in 2003.

Peterson also asserts the fiduciary duty defendants owed was continuous in nature. But "[t]he fiduciary duties owed among partners is not unlimited. `[T]his duty "applies only to situations where one partner could take advantage of his position to reap personal profit or act to the partnership's detriment."' [Citations.] Applied to former partners . . ., the continuing fiduciary duty which survives dissolution of the partnership is breached if the ex-partner attempts to divert partnership opportunities for his personal benefit to the detriment of his former partners [citation] or when the remaining partners exclude the ex-partner from the benefits of an existing partnership opportunity [citations]." (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1551.)

Peterson does not allege defendants deprived him of, or excluded him from, partnership opportunities and has not cited any authority holding that former partners have continuing duties beyond sharing partnership business opportunities. Rather, he contends defendants "owed a continuing fiduciary duty to [him] to collect for the [f]irm's work performed while he was a partner and to set aside in trust and/or relay to him his share." His failure to cite authority recognizing such a continuing duty waives the claim. (Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 648-649.)

Moreover, even if this continuing duty exists, that does not mean the statutes of limitations were tolled indefinitely until defendants'"final breach, which was, arguably, the bankruptcy filing." None of the cases Peterson cites so hold or even deal with statutes of limitations. (See Leff v. Gunter (1983) 33 Cal.3d 508, 515-516 [partner has continuing fiduciary duty not to exclude wrongfully copartner from partnership business opportunity], citing Page v. Page (1961) 55 Cal.2d 192, 197-198, Cotten v. Perishable Air Containers (1941) 18 Cal.2d 575, 577, and Donleavy v. Johnston (1914) 24 Cal.App. 319, 328-329.) "`"It is axiomatic that cases are not authority for propositions not considered."' [Citations.]" (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 127.)

Peterson maintains defendants "are ill positioned to claim that [he] should have known to sue them earlier" because they had claimed he had no right to the firm's financial information and sued him when he issued subpoenas for the information. Additionally, he asserts "it would have been fruitless to sue [defendants individually] at the same time as the [f]irm" because "their defense would have been that they did not have the ability to pay [Peterson] any of his money, on an individual basis" under the terms of the partnership agreement. But whether defendants denied him access to the firm's financial records or what their defense would have been had they been sued in 2004 is irrelevant to the statute of limitations inquiry. Peterson cites no authority holding that statutes of limitation are tolled under these circumstances.

Because Peterson has failed to demonstrate error in the court's sustaining of defendants' demurrers on statute of limitations grounds, we need not address whether the demurrers properly could have been sustained on other grounds.

c. Leave to Amend

To show abuse of discretion, a plaintiff must show in what manner the complaint could be amended and how that would change its legal effect, i.e., state a cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Peterson has not done so, instead asserting only general principles of law on the issue of leave to amend. There is thus "no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]" (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 44.)

2. Denial of Motion to Compel Arbitration

Peterson argues the standard of review for the order denying his motion to compel arbitration is de novo. But the trial court found Peterson had waived his right to arbitrate against defendants by his "[d]elay in bringing [the] petition" and that "[t]hese individual [d]efendants could and should have been [named] in [the] 2004 arbitration." Whether a party has waived the right to arbitrate a dispute is ordinarily a question of fact for the trial court, whose finding is binding on an appellate court if supported by substantial evidence, although it may become a question of law if the facts are undisputed and only one inference may be reasonably drawn. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.) We need not decide which standard applies because Peterson fails to address the issue of waiver in his opening brief, instead merely discussing general principles of contractual arbitration.

On appeal we presume the court's judgment or order is correct (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133) and the party challenging it has the burden of demonstrating reversible error (Ballard v. Uribe (1986) 41 Cal.3d 564, 574). Because Peterson has made no showing that the court erred in concluding he waived his right to arbitrate, the order is affirmed.

DISPOSITION

The judgment and order denying appellant's petition to compel arbitration are affirmed. Respondents shall recover their costs on appeal.

WE CONCUR:

MOORE, J.

ARONSON, J.