4th Civ. No. G048911

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

HECTORNOVAL, ) ) ) ) ) ) ) ) )

NO. G048911

Plaintiff and Appellant,

v.

LOURDES FROST,

Defendant and Respondent.

Orange County Superior Court Case No. 30-2012-00620923

Hon. Sheila B. Fell,Judge

_______________________ )

Appeal From ajudgment of The Superior Court of California, County of Orange

Honorable Sheila B. Fell,Judge

APPELLANT'S OPENING BRIEF

Casey Young, Esq.; SBN 245832 Law Offices of Casey T. Young 260 Newport Center Drive Newport Beach, California 92660 (949) 379-9827; (949) 999-0868 ctyoung@ctylaw .com

Attorney for Plaintiff & Appellant, Hector Noval

TO BE FILED IN THE COURT OF APPEAL APP-008

COURT OF APPEAL, Fourth APPELLATE DISTRICT, DIVISION Three Court of Appeal Case Number:

0048911 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): Superior Court Case Number. Casey Young, Esq., SBN 245832

3 0-2012-00620923 Newport Center Drive, Suite 100 Newport Beach, California 92660 FOR COURT USE ONLY

TELEPHONE NO.: (949) 379-9827 FAX NO. (Optional):

E-MAIL ADDRESS (Optional):

ATTORNEY FOR (Name) Appellant/Plaintiff Hector No val

APPELLANT/PETITIONER: Hector Nova}

RESPONDENT/REAL PARTY IN INTEREST: Lourdes Frost

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): 0 INITIAL CERTIFICATE 0 SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.

1. This form is being submitted on behalf of the following party (name):Appellant/Plaintiff Hector No val

2. a. 0 There are no interested entities or persons that must be listed in this certificate under rule 8.208.

b. D Interested entities or persons required to be listed under rule 8.208 are as follows:

(1)

(2)

(3)

(4)

(5)

Full name of interested entity or person

D Continued on attachment 2.

Nature of interest (Explain):

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date: November 11, 2013

Casey Young

Form Approved for Optional Use Judicial Council of California

APP-D08 [Rev. January 1, 2009]

(TYPE OR PRINT NAME)

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Page 1 of 1

Cal. Rules of Court, rules 8.208, 8.488 www.courtinfo.ca.gov

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................... .iv

I. STATEMENT OF THE CASE ............................................ 1

A. Complaint .............................................................. 1

B. Demurrer ............................................................. 1

II. STATEMENT OF APPEALABILITY .................................. 2

III. SUMMARY OF ARGUMENTS ......................................... 3

IV. STATEMENT OF FACTS ................................................ 4

A. Hospitalization ......................................................... 4

B. Financial elder abuse ............................................... .4

C. Durable power of attorney for health care ....................... 5

D. Unilateral & secretive decision-making ........................... 5

E. Appellant's due diligence & Defendants' fraudulent concealments and misrepresentations ............................ 6

F. Physical elder abuse, neglect, and wrongful death .............. 8

G. Lack of suspicion of any misconduct or wrongdoing ............ 9

H. Time and manner of the discovery that triggered suspicion of misconduct and wrongdoing ........................ 9

V. STANDARDOFREVIEW ............................................. 10

A. Demurrer review: de novo ... ....................................... 1 0

B. Statute of limitations ............................................... 11

C. Leave to amend: "abuse of discretion." ......................... 11

VI. DISCUSSION .............................................................. l2

A. It was reversible error to sustain the demurrer on statute oflimitations grounds ..................................... 12

1. The demurrer "waived" statute of limitations ......... 12

2. The trial court's sua sponte assertion of statute of limitations violated Appellant's right to due process ...................................................... 13

3. Financial elder abuse is timely on its face ............... 14

4. Delayed "accrual" is adequately pleaded ............... 15

a. Delayed "accrual," generally ..................... 15

b. Delayed "accrual," instantly ..................... 16

B. It was an "abuse of discretion" to deny Appellant's request for leave to amend ........................................ 20

1. "Abuse of discretion" standard ........................... 20

2. Additional facts on "delayed" accrual. ................. 20

a. Grim expectations for recovery .................. 20

b. Appellant's closeness to Defendants ............ 21

c. Additional due diligence .......................... 22

d. Defendants' forgery & further concealment ........................................ 22

C. The Demurrer: res judicata. The complaint is not barred by res judicata ............................................ ... 23

1. Documents subject to judicial notice and matters set forth by declaration .......................... 23

a. Probate "Removal Petition." ..................... 23

b. Settlement. ......................................... 23

c. Civil litigation continued undisturbed post-settlement. .................................... 25

d. Court order approving settlement. .............. 25

ii

2 Th ti. " . d" . d:" t 26 . e par es wmve reSJU zca a ........................ .

3. The Removal Petition involved different "primary rights" than those asserted instantly ......... 29

a. Physical elder abuse & neglect ................... 29

b. Financial elder abuse .............................. 29

c. Wrongful death .................................... 30

d. Removal Petition .................................. 31

4. Applying res judicata would be unjust. ................... 32

D. The Demurrer: standing. Appellant has standing to assert elder abuse ................................................... 33

E. The Demurrer: pleading. The complaint does not fail to state a cause of action for physical elder abuse, neglect, or financial elder abuse ................................. 34

1. Physical elder abuse ....................................... 34

2. Neglect ...................................................... 35

3. Financial elder abuse ..................................... 36

VII. CONCLUSION ........................................................... 38

CERTIFICATE OF COMPLIANCE .......................................... 39

iii

TABLE OF AUTHORITIES

CASES

Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Cas. & Sur. Co. qf Am.

(2005) 133 Cal.App.4th 1319 .......................................... 27

American Bankers Ins. Co. v. Avco--Lycoming Division (1979) 97 Cal.App.3d 732 .............................................. 26

Angie M v. Superior Court (1995) 37 Cal.App.4th 1217 ....................................... 11, 20

April Ente1prises, Inc. v. K7TV (1983) 14 7 Cal.App.3d 805 ............................................. 19

Ayer v. Robinson (1958) 163 Cal.App.2d 424 ........................................ 34, 35

Bank qf AmericaNat'l Trust & Savings Ass'n v. Ames (1936) 18 Cal.App.2d311 .............................................. 12

Bastian v. Counry qf San Luis Obispo (1988) 199 Cal.App.3d 520 ............................................. 16

Benun v. Superior Court (2004) 123 Cal.App.4th 113 ............................................ 14

Bernson v. Brownin15Ferris Industries (1994) 7 Cal.4th 926 ................................................. 15, 19

Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103 ........................................... 20

Blank v. Ki1wan (1985) 39 Cal.3d 311. .................................................... 20

Boeken v. Philip Monis USA, Inc. (2010) 48 Cal. 4th 788 ................................................... 26

Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959 ............................................. 17

iv

Bmwn v. Bleibe1g (1982) 32 Cal.3d 426 .............................................. 16, 18

Buttram v. Owens--Coming Fiberglas Corp. (1997) 16 Cal.4th 520 ............................................. .15, 19

Gareau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371. ......................................... 20

Carter v. Ptime Healthcare Paradise Vallry LLC (2011) 198 Cal.App.4th 396 ........................................... 36

Coalition fir Clean Air v. City qf Visalia (2012) 209 Cal.App.4th 408 .......................................... 11

Committee For Green Foothills v. Santa Clara County Bd. qf Supervisors (2010) 48 Cal. 4th 32 ................................................... 11

Crowlry v. Katleman (1994) 8 Cal. 4th 666 .................................................... 29

Davies v. Krasna (1975) 14 Cal.3d 502 ................................................... 12

Day v. McDonough (2006) 547 U.S. 198, 210 .............................................. 13

Dudlry v. Department qf Transportation (200 1) 90 Cal.App.4th 255 ............................................ 20

Dunkin v. Boskry (2000) 82 Cal.App.4th 171. ........................................... 32

E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308 ..................................... 18, 19

Ellena v. State qf Cal. (1977) 69 Cal.App.3d 245 .............................................. 26

Frederick v. Calbio Phmmaceuticals (1979) 89 Cal.App.3d 49 ............................................... 15

v

Garcia v. Supe1ior Court (1990) 50 Cal.3d 728 .................................................... 10

Geneva Towers Ltd. Partnership v. City and County qf San Francisco (2003) 29 Cal.4th 769 ................................................... 11

Goodman v. Kennedy (1976) 18 Cal.3d 335 ............................................... 11, 20

Grisham v. Philip Morns U.S.A., Inc. (2007) 40 Cal. 4th 623 .............................................. 14, 30

Henderson v. Newport-Mesa Unified School District (2013) 214 Cal.App.4th 478 ....................................... 29, 32

Hendy v. Losse (1991) 54 Cal.3d 723 .................................................... 20

Hill v. Braxton (4th Cir. 2002) 277 F.3d 701. .......................................... 13

In re Dito (2011) 198 Cal.App.4th 791. ...................................... 29, 32

Kenworthy v. Brown (1967) 248 Cal.App.2d 298 ............. : .............................. 14

Kilburn v. Pineda (1982) 137 Cal.App.3d 1046 .......................................... 17

Kilgore v. Younger (1982) 30 Cal.3d 770 ................................................... 11

Louie v. BFS Retail and Commercial Operations, LLC (2009) 178 Cal.App.4th 1544 .......................................... 26

Lucido v. Superior Court (1990) 51 Cal.3d 335 .................................................... 32

Mack v. Soung (2000) 80 Cal.App.4th 966 ............................................. 35

Manning v. Hymer (1969) 273 Cal.App.2d 519 ............................................ 26

vi

Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397 ........................................... 10

McDonald v. Superior Court (1986) 180 Cal.App.3d 297 ............................................ 11

McMillan v. Jmvis (4th Cir. 2003) 332 F.3d 244 .......................................... 13

Miller & Lux, Inc. v. James (1919) 180 Cal. 38 ...................................................... 27

Moreno v. Sanchez (2003) 106 Cal.App.4th 1415 ..................................... 18, 19

Moslry v. San Bernardino City Unified School Dist. (2005) 134 Cal.App.4th 1260 .................................... 10, 11

Mullins v. Rockwell Int'l Cmp. (1997) 15 Cal. 4th 731 ................................................. 12

Nfycogen Corp. v. Monsanto Co. (2002) 28 Cal. 4th 888 ............................................. 26, 29

Nmgart v. Upjohn Co. (1999) 21 Cal.4th 383 ............................................. 15, 17

People v. Barragan (2004) 32 Cal. 4th 236 .................................................. 29

People v. Heitzman (1994) 9 Cal. 4th 189 ................................................... 35

Pooshs v. Philip Manis USA, Inc. (2011) 51 Cal.4th 788 ............................................. 15, 17

OJtimz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256 ................................ 29, 30, 31

Regents qf University v. Superior Court (1995) 33 Cal.App.4th 1710 .......................................... 12

Romano v. Rockwell Inc. (1996) 14 Cal.4th 479 ................................................. 12

vii

Salton Bay MminaJ Inc. v. Imperial Inigation Dist1ict (1985) 172 Cal.App.3d 914 .......................................... 12

Sanchez v. South Hoover Hospital (1976) 18 Cal. 3d 93 .................................................... 18

Schifimdo v. Ciry qf Los Angeles (2003) 31 Cal. 4th 1074 ............................................. 4, 10

Sisemore v. Master Financia4 Inc. (2007) 152 Cal.App.4th 1386 ........................................ 10

Slater v. Blackwood (197 5) 15 Cal. 3d 791 .................................................. 29

United States v. Seckinger (1970) 397 U.S. 203 .................................................... 26

United States Liab. Ins. Co. v. Haidinger-HayesJ Inc. (1970) 1 Cal.3d 586 .................................................... 16

Urljian v. Berman (1989) 208 Cal.App.3d 881 ........................................... 18

Villacres v. ABM Indus.J Inc. (2010) 189 Cal.App.4th 562 ........................................... 26

Walgreen Co. v. Ciry and Counf:Y qf San Francisco (2010) 185 Cal.App.4th 424 .......................................... 10

Winn v. McCulloch Corp. (1976) 60 Cal.App.3d 663 ............................................. 20

Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716 .............................................. 16

STATUTES

Page

Cal. Code Civ. Proc., §312 .................................................... 15

Cal. Code Civ. Proc., §335.1. ................................................. 14

Cal. Code Civ. Proc., §377.60 ................................................ 30

viii

Cal. Code Civ. Proc., §377.61. ............................................... 30

Cal. Code Civ. Proc., §430.10(a), (e) .......................................... 10

Cal. Code Civ. Proc. §430.60 ................................................. 12

Cal. Code Civ. Proc., §904.1(a)(1) ............................................. 2

Cal. Const., Art. 1, §7 .......................................................... 13

Cal. Prob. Code, §48 ........................................................... 33

Cal. Prob. Code, §4202(b) ...................................................... 9

Cal. Pro b. Code, §4 7 41 ...................... ................................. 36

Cal. Pro b. Code, §8502 .................................................... 23, 31

Cal. Prob. Code, §8502(e) ..................................................... 31

Cal. Rules ofCourt, Rule 8.104(a)(1) .......................................... 2

Cal. Welf. & Inst. Code §15610 .............................................. 33

Cal. Welf. & Inst. Code §15610.30 .......................................... 29

Cal. Welf. & Inst. Code §15610.37 .......................................... 35

Cal. W elf. & Inst. Code § 1561 0.5 7 .......................................... 29

Cal. Welf. & Inst. Code §15610.57(a)(1) .................................... 35

Cal. Welf. & Inst. Code §15610.63 .......................................... 29

Cal. Welf. & Inst. Code §15610.63(b) ....................................... 34

Cal. W elf. & Inst. Code § 1565 7 .............................................. 33

Cal. Welf. & Inst. Code §15657.3(d)(1) ...................................... 33

Cal. Welf. & Inst. Code §15657.3(d)(2) ................................... 3, 33

Cal. W elf. & Inst. Code § 1565 7. 7 ............................................ 14

OTHER None.

ix

I.

STATEMENT OF THE CASE

A. Com.plaint.

"Appellant" Hector Noval, as an heir and interested person in the

estate ofhis father, Victorino Noval, filed the instant complaint for damages

and other remedies on December 28, 2012, against "Defendants" Lourdes

Frost and Tania Noval, for: (1) physical elder abuse, (2) neglect, (3) financial

elder abuse, (4) wrongful death, and (5) conspiracy. (1 AA 1:10-16, 2:3-13,

19:4-20:22) The complaint admits that Victorino died on May 7, 2010 but

alleges that any applicable two-year statute of limitations did not begin to

accrue until February 15, 2011, when Appellant discovered certain facts

that had been previously concealed from him. (1 AA 9:18-10:22)

B. Dem.urrer.

Defendant Frost filed a demurrer, making arguments of res judicata

and standing, among other things. (1 AA 23:7-25:17) The demurrer did not

challenge the adequacy of the pleadings on delayed accrual of any statute of

limitations or otherwise raise the statute of limitations as a defense. (1 AA

21-44) At hearing, however, the trial court asserted the statute of

limitations, sua sponte, on behalf of all defendants, and all causes of action,

and sustained the demurrer on that basis, alone. (3 AA 586; R T 1: 15-1 7)

Appellant requested leave to amend, but the trial court denied it. (R T 1:26-

2: 19; see also 3 AA 586)

1

II.

STATEMENT OF APPEALABILITY

This is an appeal from the trial court's final ')udgments" following its

order sustaining the demurrer without leave to amend. Code Civ. Proc.,

§904.1(a)(1). Mter the trial court sustained the demurrer, Defendant Frost

submitted a proposed judgment of dismissal, relating only to herself, and

not to the case as a whole or any of the remaining defendants. (3 AA 587-

588) The trial court entered this judgment on August 3, 2013, and

Defendant Frost served notice of its entry on August 12, 2013. (3 AA 587-

588, 589-592)

The trial court held a hearing on August 14, 2013 to dismiss the

remaining defendants on the same grounds. (R T 1 0-12) The trial court

prepared and signed a second judgment of dismissal, in the form of a signed

minute order, as to the remaining defendants and the case as a whole. (3

AA 593) These are the two 'judgments" for which Appellant appeals. (3 AA

594-595) He filed the Notice of Appeal on August 28, 2013. (3 AA 594-595)

Therefore, the appeal is timely. Cal. Rules of Court, Rule 8.104(a)(1).

2

III.

SUMMARY OF ARGUMENTS

1. It was reversible error to sustain the demurrer on statute of

limitations grounds. The defense was never raised, so it should have been

considered "waived." The trial court's sua sponte assertion of the defense

violated Appellant's right to due process and denied him fair notice and an

opportunity to respond. Plus, delayed accrual of any two-year statute of

limitations was adequately pleaded, and the third cause of action for

financial elder abuse, which carries a four-year statute of limitations, was

timely, with-or-without any benefit of delayed accrual.

2. It was an abuse of discretion to deny leave to amend.

Appellant could have cured any defect by including additional factual

allegations in a First Amended Complaint. He should have been given the

opportunity to do so.

3. The demurrer asserts no grounds that support an order

sustaining demurrer without leave to amend. Among them, res judicata does

not bar the complaint because: (1) Respondent "waived" any such defense

as part of a settlement of the prior matter at issue; and (2) the prior matter

at issue involved different "primary rights." Appellant has standing to assert

elder abuse as set forth in Cal. Welf. & Inst. Code §15657.3(d)(2). And the

complaint adequately pleads physical elder abuse, neglect, and financial

elder abuse, as a matter oflaw, as discussed below.

For these reasons, Appellant respectfully seeks that the judgment(s) of

dismissal be reversed, and on remand, the trial court be directed to vacate

the order sustaining demurrer and enter a new and different order

overruling it. Appellant also respectfully seeks an award of costs on appeal.

3

IV.

STATEMENT OF FACTS1

A. Hospitalization.

On April 28, 2010, Victorino Noval was admitted to a Kaiser

hospital and treated for "aspiration pneumonia." (1 AA 3:3-4) He was

sedated and placed on a mechanical ventilator for oxygen support, which

prevented him from being able to meaningfully communicate on his own

behal£ (1 AA 3:4-5) He was 78 years old and worth $60 million. (1 AA 3:5)

"Defendants" Lourdes Frost and Tania Noval, who were Victorino's two

adult daughters, appeared at the hospital, spoke privately with the hospital

staff, including a social worker with whom they had personal ties, and urged

the staff to simply not treat Victorino so that he could "die peacefully." (1

AA 6:27-7:5, see also 3:12-14, 7:15-16)

B. Financial elder abuse.

Defendants then went to Victorino's home, got into his safe, and

took his checkbooks, guns, legal documents, and cash-on-hand. (1 AA

14: 16-20) They forged a $5,000 check from one of his bank accounts and

transferred title of his Mercedes Benz to their mother, among other things.

(1 AA 14:20-28) At the time, Defendant Frost owed Victorino $2 million

that she had wrongfully taken from him, and while Defendants were at

Victorino's home, they spoliated records relating to this transaction and

Defendant Frost's legal obligation to re-pay it. (1 AA 15:20-25)

1 The allegations in the complaint, as well as those implied or inferred therefrom, are deemed true on demurrer. Schifando v. Ciry qf Los Angeles (2003) 31 Cal.4th 1074, 1081.

4

C. Durable power of attorney for health care.

While at his home, Defendants gained possession of Victorino's

Durable Power of Attorney for Health Care, datedjuly 7, 1999 ("DPOA").

(1 AA 6:13-19, 10:21-22) The DPOA named Appellant and Defendant

Frost as Victorino's "attorneys in fact" and agents" for health care

decisions, and it expressly stated, "[i]t is my intention to have two agents

acting together at all times" and that the health care decisions were to be

made by Appellant and Defendant Frost and "together." (1 AA

3:27-4:9, Appellant did not know the DPOA existed, and

Defendants did not disclose it to him. (1 AA 4:24,5:18-22, 6:18-19)

D. Unilateral & secretive decision-m.aking.

Defendants took the DPOA to the hospital and met, privately, for

several consecutive days with the social worker with whom they had

personal ties. (1 AA 7:15-16) They told the social worker that "the entire

family," including Appellant, desired a withdrawal of treatment - even

though they knew this was not true. (1 AA 7:16-18, 9:1-4) The social worker

believed them and told the other hospital staff members. (1 AA 7: 18-19) He

also, at Defendants' request, contacted a Catholic Priest to read Victorino

his Last Rights. (1 AA 7:20-21) Defendants appeared at the hospital over

the next several days to ensure the hospital staff followed through with the

withdrawal of treatment. (1 AA 7:22-23, 8:1-2, 8:24-28)

Meanwhile, Appellant appeared at the hospital on four separate

occasions to cheer for Victorino's recovery and express his desire that

Victorino's treatment continue. (1 AA 4:23-28, 5:5-12) No one at the

hospital gave him any indication that he was a agent" for health care

or that he had any power to participate in and/ or control the health care

decisions. (1 AA 9:24-28) On his last visit, May 5, 2010, the hospital social

worker (who, unbeknownst to Appellant, had personal ties with Defendants)

5

pulled him aside and told him that his father's treatment was going to be

withdrawn and that he would likely die. (1 AA 5:5-8) Appellant reiterated

his desire for further treatment and more time, but the social worker

appeared only interested in communicating with him what was going to

happen- not what Appellant wanted to have happen. (1 AA 5:5-12, 9:27-

28)

E. Appellant's due diligence & Defendants' fraudulent concealm.ents and misrepresentations.

Immediately following his communication with the social worker,

Appellant left the hospital and retained a lawyer familiar with the family. (1

AA 5:13-15) The lawyer called a meeting that afternoon between Appellant

and Defendants to convey Appellant's desire that Victorino continue

receiving treatment. (1 AA 5:13-1 9) Defendants appeared at the meeting

and brought with them Victorino's purported Will and Trust, and nothing

else. (1 AA 5:17-19) The lawyer asked ifthere was any health care directive

or DPOA, and Defendants said no, that the Will and Trust were all that

existed. (1 AA 5:1 9-22)

Defendants told Appellant that there was nothing anyone could do

for Victorino, that he was gravely ill and terminal, and that he had no

chance of survival. (1 AA 5:24-26) This appeared consistent with what the

social worker had just told Appellant, and it confirmed for Appellant his

feeling of powerlessness to affect his father's health care. ( 1 AA 6: 10-12,

10: 1-5) At the end of the meeting, Defendants nevertheless told Appellant

that Victorino would have wanted Appellant to participate in any end-of-

life decision and that they would not make any such decision without him.

(1 AA 5:26-28)

6

However, unbeknownst to Appellant, Defendants left the meeting

and returned to the hospital, not to tell the staff about Appellant's desires

for further treatment, but to tell them to disregard anything they had heard

earlier that day from Appellant (about wanting more time and treatment)

because he was, as they claimed, a violent person, a drug addict, someone

with a paranoid personality, someone with ulterior motives, and someone

unfit to serve as a surrogate for his father's health care decisions. (1 AA

7:24-28)

The next morning, Defendants met again with the hospital staff and

claimed that Appellant had "threatened violence" against them and that

they were "afraid" of him. (1 AA 8:4-5) None of this was true. (1 AA 8:4-5)

But the hospital staff concluded, on these statements, alone, that Appellant

was in a "clearly impaired condition" and that they were going to proceed

with the desires of Defendants to withdrawal treatment the following day,

May 7. (1 AA 8:7-10) No one ever met with Appellant, communicated with

him, or informed him that any ofthis was taking place. (1 AA 8:10-11)

Later that day, in light of the plan to withdraw treatment, the

hospital staff advised Defendants of Victorino's "material" improvement. (1

AA 8:12-13, 8:26) He had overcome his pneumonia and was achieving a

normal body temperature, heart rate, and blood pressure. (1 AA 3:15-24)

He was receiving 90% less morphine than when he arrived, was in no

distress, showed no signs of any further lung infection, and could "awake to

voice with eye opening and eye contact for more than 10 seconds." (1 AA

3:15-24) The hospital staff never shared any of this information with

Appellant, and Defendants, unilaterally, told the hospital staff that any

improvement did not matter to them and that they still desired that

treatment be withdrawn. (1 AA 8:13-18, 9:26-27)

7

Later that day, likely in light of the hospital staffs disclosure of

Victorino's "material" improvement to Defendants, Defendant Frost

contacted the hospital social worker and told him that she was on her way

to Appellant's lawyer's office and that the family still "plans to move

forward with [terminal] extubation [the next day]." (1 AA 8:18-21) But

none of this was true. (1 AA 8:21-23) Defendants had never contacted

Appellant, and there was no such meeting planned. (1 AA 8:21-22)

The following morning, May 7, prior to withdrawing treatment, the

hospital staff met again with Defendants and advised them that Victorino

had "improved further since yesterday." (1 AA 8:24-26) They gave

Defendants the opportunity to postpone and/ or cancel the withdrawal of

treatment, but Defendants declined. (1 AA 8:26-28) The hospital staff then

asked Defendants about Appellant and Defendant Frost "confirmed that

[Appellant] has agreed to follow family wishes regarding extubation

[withdrawal of treatment] and has decided not to be present at actual

event." (1 AA 9: 1-4) This was not true. (1 AA 9:4-5) The last time

Defendants had spoken to Appellant was at Appellant's lawyer's office, days

earlier, when they had promised Appellant that they would not do any of

what they were doing without him. (1 AA 6: 1-2)

F. Physical elder abuse, neglect, and wrongful death.

Thereafter, at the direction and control of Defendants, the hospital

staff withdrew treatment in a process called "terminal extubation." (1 AA

9:9-13) Namely, they removed Victorino's mechanical ventilator and

eliminated his oxygen support, then they removed his nutritional tubes and

administered fatal dosages of morphine with the sole intent of hastening his

death. (1 AA 9:10-13) Without the combination of these acts, Victorino

would not have died. (1 AA 9:13-14) He would have continued to improve,

8

recover, and ultimately regain his alertness and be discharged home from

the hospital. (1 AA 9:14-15)

G. Lack of suspicion of any misconduct or wrongdoing.

Mter Victorino died, Defendants called Appellant and told him that

Victorino had just died of "natural causes." (1 AA 6:3-5) Appellant was not

aware of the DPOA, his rights therein, the terminal extubation, or of the

hastening ofVictorino's death that had just occurred. (1 AA 6:8-10) For all

he knew, his 78 year-old father had just died, naturally, after 10 days in the

hospital, in the care of medical professionals, after failing to overcome a

severe bout of "aspiration pneumonia." (1 AA 6:10-12, 10:13-17) He had

no reason to suspect any foul play or fraud. (1 AA 6:1 0) And it was out of

the question that his own sisters could have been misrepresenting the truth

to him. (1 AA 10:16-17)

H. Time and manner of the discovery that triggered suspicion of misconduct and wrongdoing.

Eight months later, Defendants' lawyer, possibly without realizing

the gravity of the admission, admitted to Appellant that Defendants had

been concealing from him a 156-page "Comprehensive Estate Planning

Binder" that had belonged to Victorino at the time ofhis death. (1 AA 6:13-

17) Defendants produced the binder on approximately February 15, 2011,

and when Appellant reviewed it, he discovered a copy of the DPOA in the

back-flap. (1 AA 6: 18-19) Appellant took the DPOA to the hospital and

used it, as authorized, to obtain Victorino's medical records. (1 AA 6:20-22,

see also 1 AA It was only after doing this that Appellant

discovered the misconduct and wrongdoing set forth herein. (1 AA 6:21-24)

Namely, that his "consent" to any medical procedure was legal{y required

(see Prob. Code, §4202(b)), and that it was feigned by Defendants through

fraud and deceit.

9

v. STANDARD OF REVIEW

A. Dem.urrer review: de novo.

An order sustaining demurrer is reviewed de novo. Moslry v. San

Bernardino Ciry Unified School.Dist. (2005) 134 Cal.App.4th 1260, 1263. On de

novo review, the court exercises independent judgment about whether the

complaint states a cause of action as a matter of law, and it is not bound by

the lower court's reasoning and reviews. Walgreen Co. v. Ciry and Counry qf San

Francisco (2010) 185 Cal.App.4th 424, 433. A demurrer is only properly

sustained when the complaint "does not state facts sufficient to constitute a

cause of action," or where the court "has no jurisdiction of the subject of

the cause of action alleged in the pleading." Cal. Code Civ. Proc.,

§430.10(a), (e).

The truth and accuracy of properly pleaded facts is assumed for

purposes of the demurrer. Garcia v. Superior Court (1990) 50 Cal.3d 728, 732.

As too is the truth and accuracy of the facts that may be implied or inferred

from those expressly alleged. Marshall v. Gibson) Dunn & Crutcher (1995) 37

Cal.App.4th 1397, 1403; Schifondo v. Ciry qf Los Angeles) supra) 31 Cal.4th at

1 081. Whether or not a plaintiff will be able to prove the allegations is an

irrelevant consideration. Sisemore v. Master Financial) Inc. (2007) 152

Cal.App.4th 1386, 1397. The court also considers judicially noticed

matters. Schifondo v. Ciry qf Los Angeles, supra, 31 Cal. 4th at 1081.

10

B. Statute of lim.itations.

In particular, when considering the statute of limitations, "[a]

demurrer... will not lie where the action may be, but is not necessarily,

barred [by the statute of limitations]." Committee For Green Foothills v. Santa

Clara County Bd. qf Supei7Jisors (2010) 48 Cal.4th 32, 42, citing Geneva Towers

Ltd. Partnership v. City and County qf San Francisco (2003) 29 Cal.4th 769, 781.

"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." Ibid. Consequentially, "it is difficult for demurrers based on the

statute of limitations to succeed because (1) trial and appellate courts treat

the demurrer as admitting all material facts properly pleaded and (2)

resolution of the statute of limitations issue can involve questions of fact."

Coalition for Clean Air v. City qfVisalia (2012) 209 Cal.App.4th 408, 420, citing

Committee for Green Foothills, supra, 48 Cal. 4th at 42.

C. Leave to am.end: "abuse of discretion."

The court reviews the denial of leave to amend under an "abuse of

discretion" standard. Moslf!Y v. San Bernardino City Unified School Dist., supra,

134 Cal.App.4th at 1263. The trial court has abused its discretion in

denying leave to amend if there is a reasonable possibility that the defect

can be cured by amendment. Kilgore v. Younger (1982) 30 Cal.3d 770, 781.

Liberality in permitting amendment is the rule if there hasn't yet been a fair

opportunity to correct the defects. McDonald v. Superior Court (1986) 180

Cal.App.3d 297, 304. It is of course the plaintiffs burden to show how the

complaint can be amended, but the plaintiff should have a "fair opportunity

to correct any defect." Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; see

Angie M v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.

11

VI. DISCUSSION

A. It was reversible error to sustain the demurrer on statute of limitations grounds.

1. The denturrer "waived" statute oflintitations.

"A demurrer shall distinctly specifY the grounds upon which any of

the objections to the complaint ... are taken" and "[u]nless it does so, it may

be disregarded." Code Civ. Proc., §430.60. The statute oflimitations is one

of those grounds, an affirmative defense, that must be pleaded to be

preserved. Davies v. Krasna (1975) 14 Cal.3d 502, 508; Salton Bay Marina, Inc.

v. Imperial Irrigation District (1985) 172 Cal.App.3d 914, 940 n.4 [statute of

limitations, as a defense, is a personal privilege that is waived if not

invoked]; see also Bank qf America Nat'l Trust & Savings Ass'n v. Ames (1936) 18

Cal.App.2d 311, 314 [a complaint, even if barred by the statute of

limitations, still states a cause of action for purposes of demurrer because

the defendant may neglect to raise the defense].

Where a defendant has not raised statute of limitations, the court

should not interject itself into the case and assert the defense itself. See

Regents qf University v. Superior Court (1995) 33 Cal.App.4th 1710, 1716,

disapproved on other grounds in Mullins v. Rockwell Int'l C01p. (1997) 15

Cal.4th 731 and Romano v. Rockwell Inc. (1996) 14 Cal.4th 479. But that

is what happened here. No defendant raised the statute of limitations, and

no defendant challenged the sufficiency of the complaint's pleading on

delayed accrual. Therefore, the trial court should have considered the

defense "waived" for the purposes of the demurrer, and it should not have

asserted the defense itself. The trial court should have simply ruled only on

the grounds distinctly specified in the demurrer.

12

2. The trial court's sua sponte assertion of statute of lim,itations violated Appellant's right to due process.

The court, before acting on its own initiative, must accord the parties

fair notice and an opportunity to present their positions. Day v. McDonough

(2006) 54 7 U.S. 198, 210 [Sua sponte assertion of statute of limitations in a

criminal habeas corpus petition was improper for this reason]. According to

the cases cited by Day v. McDonough, supra, "the point ... is to ensure ... [the

court] does not prematurely dismiss [a case] as untimely before the

[plaintifl] has an adequate opportunity to present facts 'not apparent to the

court that militate against the application of the limitations bar,"' McMillan

v. Jmvis (4th Cir. 2003) 332 F.3d 244, 250, citing Hill v. Braxton (4th Cir.

2002) 277 F.3d 701, 707.

Had the demurrer raised statute of limitations, as opposed to the

court at hearing, Appellant would have been able to respond with a written

opposition, asserting his position that each cause of action was timely and

distilling any improper assumptions that were being made in a written

demurrer. In addition, Appellant would have been on notice to file a First

Amended Complaint before the hearing to assert the full weight of his

factual allegations on the issue of accrual. Instead, by the court's sua sponte

assertion of statute of limitations, Appellant was denied both of these

opportunities in violation of his due process rights discussed in Day v.

McDonough, supra, 547 U.S. at 210, and those set forth in the California state

constitution. Cal. Const., Art. 1, §7.

13

3. Financial elder abuse is timely on its face.

Wrongful death, physical elder abuse, and neglect are all subject to

two-year statutes of limitations. See Code Civ. Proc., §335.1; see Benun v.

Superior Court (2004) 123 Cal.App.4th 113, 125-126 [§335.1 "is facially

applicable to [physical] elder abuse"]. Conspiracy is not an independent

tort and simply carries the same two-year statutes of limitations as the torts

herein underlying it. Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 301.

Since these torts occurred on or about May 7, 2010, and the complaint was

not filed until December 28, 2012, Appellant concedes that these causes of

action require delayed "accrual" of their two-year statutes of limitations in

order to be timely.

The outlier is the third cause of action for financial elder abuse. Its

statute of limitations is four years. W elf. & Inst. Code § 1565 7. 7. And it

should not have been tied to any of the other causes of action. See Grisham v.

Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 645 [economic injuries and

physical injuries are "qualitatively different type[s] of actions" that carry

separate and distinct statutes of limitations]. The financial elder abuse

allegedly took place, among other times, in April/May, 2010, and since the

complaint was filed on December 28, 2012, the cause of action is timely,

with-or-without any benefit of delayed "accrual."

14

4. Delayed "accrual" is adequately pleaded.

a. Delayed "accrual," generally.

The statute of limitations only begins to run after a cause of action

has "accrued." Code Civ. Proc., §312. A cause of action "accrues" "when

[it] is complete with all of its elements" - those elements being wrongdoing,

harm, and causation. Pooshs v. Philip Morris USA, Inc. (20 11) 51 Cal. 4th 7 88,

797, citing Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 397. An important

exception to this rule is the "discovery rule," which postpones "accrual" of

the statute of limitations until the plaintiff "discovers, or has reason to

discover, the cause of action." Nmgart v. Upjohn Co., supra, 21 Cal.4th at 397.

"A close cousin of the discovery rule is the 'well accepted principle ... of

fraudulent concealment.' [Citation] 'It has long been established that the

defendant's fraud in concealing a cause of action against him tolls the

applicable statute of limitations ... for that period during which the claim is

undiscovered by plaintiff or until such time as plaintiff, by the exercise of

reasonable diligence, should have discovered it.' [Citation]" Bernson v.

Industries (1994) 7 Cal.4th 926,931.

These rules protect a plaintiff who is "blamelessly ignorant" and it

"ameliorate [s] a harsh rule that would allow the limitations period ... to

expire before a plaintiff has or should have learned of [it]." Buttram v.

OwenJComing Fibe1glas Cmp. (1997) 16 Cal. 4th 520, 531; see also Frederick v.

Calbio Pharmaceuticals (1979) 89 Cal.App.3d 49, 53-54. And in the case of

"fraudulent concealment," this rule prevents a defendant from profiting

from his/her concealment to the extent it hindered an "otherwise diligent"

plaintiff in discovering his cause of action. See Bernson v.

Industries, supra, 7 Cal.4th at 931.

15

The date of "accrual" of a cause of action is an issue of fact, not law.

Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 527; United

States Liab. Ins. Co. v. Inc. (1970) 1 Cal.3d 586, 597 ["There

are no hard and fast rules" for determining the date of accrual, "it is a

question for the trier of fact."]. The task for the court on demurrer is not to

determine the actual date of accrual, but whether, as a matter of law, such

an issue exists to be determined by the trier of fact. Brown v. Bleiberg (1982)

32 Cal.3d 426, 436, citing Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d

716, 725. Such an issue of fact exists, instantly.

b. Delayed ••accrual," instantly.

The complaint specifically alleges that Appellant lacked any

suspicion of wrongdoing when Victorino died on May 7, 2010. Defendants

had called and told him that Victorino had just died of "natural causes."

For all he knew, his 78 year-old father hadjust died, naturally, after 10 days

in the hospital, in the care of medical professionals, after failing to overcome

a severe bout of "aspiration pneumonia." Appellant had appeared at his

father's bedside four times to cheer his recovery and express his desire for

continued treatment. He had even hired a lawyer to express the same to his

sisters, Defendants. But based on his interactions with the hospital staff and

Defendants, he did not believe there was anything more he could do than

simply express his desires and hope for the best.

Things changed on February 15, 2011 when Defendants' lawyer

produced, possibly inadvertently, a copy of the DPOA within a larger

production of documents. This was the first time Defendants had let

anything escape that could have triggered any suspicion of wrongdoing.

Appellant consequentially began suspecting that misconduct could have

occurred during Victorino's hospitalization, and he promptly obtained

Victorino's medical records, which he only had the authority to do through

16

the authority granted in the DPOA. Mter doing so, he was able to conduct

further due diligence and discover the wrongdoing that forms the basis of

this complaint- i.e., Defendants' apparent end-of-life decision for Victorino

made secretly without Appellant's consent.

The trial court, at hearing on demurrer, stated that "[Appellant]

talked about the power of attorney and how this would toll the statute. It

doesn't." (RT 2: 1-12) But legally, accrual only begins when a plaintiff has

suspicion of harm, wrongdoing, and causation. See Pooshs v. Philip Morris

USA, Inc., supra, 51 Cal.4th at 797, citing Norgart v. Upjohn Co., supra, 21

Cal.4th at 397. Here, Appellant certainly knew about the "harm" - his

father's death, when it happened, but had no reason to suspect any

"wrongdoing" (i.e., that any end-of-life decision was made without legal

consent) or "causation" (i.e., that the death was not from "natural causes").

The mere fact that a patient's treatment does not go as hoped-for

does not warrant suspicion of wrongdoing. See B1istol-Myers Squibb Co. v.

Court (1995) 32 Cal.App.4th 959, 964, disapproved on other

grounds in Norgart v. Upjohn Co., supra, 21 Cal.4th at 410, fn. 8. "Everyone

knows, for instance, that medical procedures do not always turn out well.

The mere fact that an operation does not produce hoped-for results does

not signify negligence and will not cause commencement of the statutory

period." !d. at 964; see also Kilburn v. Pineda (1982) 137 Cal.App.3d 1046,

1049 ["even where an operation leads to rare and unforeseen injuries,

malpractice will not be inferred"]. There must be more than disappointing

results before a patient's family will be charged with suspicion of

wrongdoing. !d. at 964.

Also, Appellant was fully entitled to rely on his interactions with the

hospital staff to believe that his father was gravely ill and terminal (and not

17

experiencing "material" improvement), and that there was nothing he, or

anyone else, could do to save his life. This is because patients and their

family are "fully entitled to rely upon the [hospital stafl] 's professional skill

and judgment while under [their] care, and have little choice but to do so."

Sanchez v. South Hoover Hospital (1976) 18 Cal. 3d 93, 1 02; Unjian v. Berman

(1989) 208 Cal.App.3d 881, 886.

Appellant had every right to expect that the hospital staff was not

keeping material information from him. See Brown v. supra, 32

Cal.3d at 437-438. In Brown v. Bleibe1g, the court discussed the "close,

trusting relationship" between a physician and his patient, and found that a

patient could be 'justified in accepting" the representations of a physician,

even as it relates to false, self-serving representations about a botched

surgery. Ibid. The hospital staff, knowing Appellant . was Victorino's

"attorney in fact" and ')oint agent," had the fundamental legal obligation

to disclose all material facts to him and seek his consent to whatever

procedures they sought to perform. Appellant was justified in thinking, since

they did not do so, that he had no such role in his father's care.

Appellant, too, had every right to rely on Defendants'

misrepresentations. These were his siblings. His sisters. They were not

dealing at arm's-length. They were close. (See "additionalfocts" set forth below.)

And they were in a family meeting, discussing their father's health care.

This was the equivalent of a fiduciary, confidential, and/ or privileged

relationship that justified Appellant's reliance on Defendants' spoken words.

See Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1424; see also E-Fab,

Inc. v. Accountants, Inc. Setvices (2007) 153 Cal.App.4th 1308, 1325.

Defendants' representations, albeit untrue, triggered Appellant's

reassurances, not his skepticism or alarm. See Moreno v. Sanchez, supra, 1 06

Cal.App.4th at 1424.

18

Importantly, Defendants' concealments and misrepresentations were

"imperceptible." See E-Fab, Inc. v. Accountants, Inc. Services, supra, 153

Cal.App.4th at 1326. Appellant could not have simply "googled" the truth,

or gone to other family members. (See ((additional facts" set .forth below.) And he

certainly was not having any success speaking with the hospital staff. It was

all kept "secret" from him. See April Enterprises, Inc. v. KTTV (1983) 14 7

Cal.App.3d 805, 832. Defendants obtained the DPOA in "secret." They

concealed it from Appellant in "secret." And they met with the hospital staff

in "secret." None of it was done in the open. Defendants did it all in ways to

specifically prevent Appellant from seeing or appreciating the truth, and to

thwart him from any suspicion of misconduct. See Moreno v. Sanchez, supra,

106 Cal.App.4th at 1423-1424. For this reason, the instant wrongdoing is

precisely the type that is commonly subject to delayed "accrual."

In short, despite Appellant's diligence, he could have never suspected

any of the instant misconduct without the disclosure of the DPOA. Before

the disclosure, Defendants had intentionally concealed the DPOA from

Appellant and were continuously thwarting him from the truth. Appellant

was "blamelessly ignorant" of the causes of action asserted in the instant

complaint until, at least, that time. See Buttram v. Owens-Coming Fiberglas

C01p. (1997) 16 Cal.4th 520, 531. And Defendants should be estopped from

profiting from their culpability in this concealment and prevented from

having any cause of action begin to "accrue" before such time as they

disclosed the DPOA (whether inadvertently or not). See Bernson v.

Ferris Industries (1994) 7 Ca1.4th 926, 931.

19

B. It was an "abuse of discretion" to deny Appellant's request for leave to am.end.

1. "Abuse of discretion" standard.

The court reviews an order denying leave· to amend under an "abuse

of discretion" standard. Hendy v. Losse (1991) 54 Cal.3d 723, 742. If there is

a reasonable possibility that the alleged defect in the complaint can be

cured by an amendment, the lower court has "abused its discretion" if it

does not allow leave to amend, and the lower court's ruling will be reversed.

Blank v. Ki1wan (1985) 39 Cal.3d 311, 318. It is the plaintiffs burden to

illustrate how the complaint can be amended to state a cause of action, but

he should have a "fair opportunity" to do so. Goodman v. Kennedy, supra, 18

Ca1.3d at 349; see Angie M v. Superior Court, supra, 37 Cal.App.4th at 1227;

Winn v. McCulloch Cmp. (1976) 60 Cal.App.3d 663, 672 [Not affording an

opportunity to amend to allege additional facts on delayed accrual was an

abuse of discretion].

2. Additionalfacts on ''delayed" accrual.

Where the trial court denies leave to amend, an appellant can set

forth additional facts in his appellate brief that he would have included in

an amended complaint, had the trial court allowed it. See Bettencourt v.

Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1107, fn. 3, citing both

Dudlty v. Department qfTransportation (2001) 90 Cal.App.4th 255, 259-260 and

Gareau & Co. v. Secwiry Pacific Business Credit, Inc. (1990) 222 Cal.App.3d

1371, 1386-1387. Appellant therefore includes the following, among other

facts, that he could have, and would have, included in a First Amended

Complaint to support the delayed accrual of any two-year cause of action:

a. Grim expectations for recovery.

Victorino's hospitalization was an "emergency." He had been taken

by ambulance to a local hospital, near his home, on the evening of April 2 7,

20

20 1 0, and had been transferred early in the morning on April 28, 20 1 0 to

the Intensive Care Unit at a Kaiser facility 55 miles south of his home. The

hospital staff told Appellant several times that it was not likely that his father

was going to survive. Dr. Long Bach, a licensed medical doctor, told

Appellant this on April 28, 2010, and the social worker, Anthony Tapia,

repeated as much on May 5, 2010. In addition, Appellant's mother, who

had appeared at the hospital several times, spoke to Appellant nearly every

day, and she expressed to Appellant on May 2, 2010, among other times,

her belief that Victorino's health had gotten worse, his organs were shutting

down, and he was not going to survive. These representations gave

Appellant the reasonable expectation that his father was going to die in the

hospital.

b. Appellant's closeness to Defendants.

During Victorino's hospitalization, Defendant Tania Noval was

involved in a dramatic scene at her residence and was evicted, on the spot.

Appellant, who lived 85 miles away, stepped in and secured all of her

property for her, including her refrigerated medication that she needed for

serious health problems she had. He immediately paid for moving trucks

and helped her relocate her property to their mother's home - all while

Victorino was in the hospital. Defendants appeared very thankful for

Appellant's support, and for that reason, Appellant believed they were all

on good terms and were working together as a family to jointly solve their

father's health issues. Defendants appeared, at all times, very concerned for

their father's well-being and desirous of the same active, aggressive

treatment that Appellant desired. This contributed to why Appellant never

suspected that Defendants were concealing anything from him or

misrepresenting facts to him. They appeared, from his perspective, to be

working together for the best interests of their father.

21

c. Additional due diligence.

During Victorino's hospitalization, Appellant contacted a number of

family members and friends, including physicians, colleagues, his mother,

his brother, and his aunt and uncle to ensure everything possible would be

done to save Victorino's life. None of them indicated any knowledge of a

DPOA, and when Victorino passed away, Defendants told them, too, that

Victorino had died of natural causes. None of these friends or family

members suspected any wrongdoing until Appellant discovered the DPOA,

uncovered the facts set forth herein, and shared them with these persons.

d. Defendants-' forgery & further concealment.

Following Victorino's death, Defendants appeared at a mortuary

and ordered the immediate embalmment of Victorino's body. The

mortuary asked for a copy of the DPOA, and when Defendants produced

it, the mortuary saw Appellant listed as a ')oint agent" and refused to

perform the embalmment until Appellant signed off on it. Defendants

forged Appellant's signature and submitted it to the mortuary as if

Appellant had really signed off on the embalmment. Forging this signature

allowed Defendants to continue concealing the DPOA, and it allowed them

to spoliate evidence that would have been obtained from an autopsy.

Mter -- Victorino's death, Appellant's lawyer asked Defendants'

counsel several times to produce all estate planning documents, including

any DPOAs, and to reassure him that everything had been produced.

Defendants' counsel stated, several times, that the only documents that

existed were a will and a trust, and that he would produce anything that

was ever discovered. Defendants' counsel continued to reassure Appellant's

lawyer that Defendants had produced everything in the estate until finally

admitting the truth in February, 2011. These ongoing concealments by

Defendants thwarted Appellant from discovering the DPOA earlier.

22

C. The Demurrer: res judicata.

The complaint is not barred by res judicata.

The argument that receives the most attention in Respondent's

demurrer is that a previous probate petition (the "Removal Petition") that

the parties voluntarily dismissed with prejudice bars the complaint on the

grounds ofresjudicata. But resjudicata does not apply for two reasons: (1) the

parties agreed that the voluntary dismissal of the Removal Petition would

not affect this case; and (2) the Removal Petition involved different

"primary rights" than this case.

I. Documents subject to judicial notice and matters set forth by declaration.

a. Probate "Removal Petition. "

Appellant filed the Removal Petition to request removal of

Defendants as "personal representatives" of Victorino Noval's probate

estate. ( 1 AA 51: 16-1 7) He claimed that Defendants could not competently

administer the estate and pursue certain causes of action on behalf of the

estate, including fraud and breach of fiduciary duties, due to their conflict of

interest - as the ones who had committed the fraud and breaches of

fiduciary duties. (1 AA 51:11-17, see also 49:9-14, 55:8-23, 56:11-14) The

Removal Petition was brought pursuant to Prob. Code §8502, which

authorizes the probate court, in its discretion, to remove a personal

representative and replace him/her with a successor to ensure a probate

estate is administered appropriately. (1 AA 48:10-13, 49:9-14, 56:11-14)

b. Settlement.

The parties settled probate, which included the Removal Petition, on

March 15, 2012, during a deposition of Appellant in the parties' trust

litigation. (2 AA 199:27-28) Defendants memorialized the settlement, on the

record at deposition, as follows:

23

"In an off-the-record discussion we have reached an agreement to settle a portion of the case. What's going to happen is, subject to notice to all trust beneficiaries and entry of an appropriate court order, the deal is as follows: [terms if distribution if probate properties to close the probate portion if the estate].

"And we will dismiss the [Removal Petition] and everybody will cooperate in closing up the probate estate as quickly as possible."

"[The lawyers] will be meeting and conferring and possibly filing -possibly will be filing a motion to compel with respect to certain questions that [Appellant] declined to answer." [Meaning that all non-probate litigation would continue forward without any disturbances from the settlement if the probate portion if the case].

(2 AA 297:20-300:3)

Defendants prepared the written settlement agreement and signed it

on or after June 21, 2012. (2 AA 200:25-28, 303-310) It stated, among other

things, that the Removal Petition would be dismissed with prejudice (2 AA

201:9-11; 2 AA 305:,-r3) but that any dismissal "shall not affect and/ or

release any ... liability for the death of Victorino Nova!." (2 AA 307: ,-r6) The

relevant paragraph is as follows:

6. MUTUAL RELEASES. Except for the rights and obligations set forth in this Agreement, the Executors and the Trustees [i.e., Defendants], on the one hand, and [Appellant], on the other hand, waive and release any claims they may have against one another arising from or relating to 1. The Properties; 2. The 850 Petition; and/ or 3. The Removal Petition ....

. . . . Such releases shall not affect and/ or release any claims or allegations unrelated to the Properties made in the ongoing litigation relating to the Trust and/ or any alleged liability for the death of Victorino Nova!.

(2 AA 307, paragraph 6; also at 2 AA 331 and 3 AA 523)

24

c. Civil litigation continued undisturbed post-settlement.

Appellant filed the instant civil complaint (under a different case

number) after the Removal Petition settled. (2 AA 197:18-20; 2 AA 213-

248; 3 AA 431-466). Appellant then spoke with Defendants, and there was

never any mention of res judicata. (2 AA 197:20-24) Defendant Frost filed

two demurrers and made no assertion of res judicata either time. (2 AA 198:3,

198:9-11, 250-271; 3 AA 468-489) Appellant even asked for permission to

begin discovery and Defendants agreed. (2 AA 286-287) Thereafter, the

parties took two depositions and Defendants appeared and participated in

both. (2 AA 198:21-28, 289, 292, 294)

d. Court order approving probate settlement.

While the instant civil case (under a different case number) was

pending and being actively litigated, Defendants petitioned for approval of

the probate settlement, which included, by its terms, dismissal with

prejudice of the Removal Petition. (2 AA 201: 14-18, 213-248, 316-334; 3

AA 431-466) Defendants made no demand that the civil case cease or be

dismissed as a result of the settlement. (2 AA 316-325; 3 AA 508-51 7) Even

at hearing on approval of the settlement and voluntary dismissal of the

Removal Petition, Defendants made no demand that the civil case cease or

be dismissed. (2 AA 201: 19-21)

25

2. The parties "waived" res judicata.

Res judicata gives certain conclusive effect to former judgments in

subsequent litigation involving the same controversy. Boeken v. Philip Morris

USA, Inc. (2010) 48 Cal.4th 788, 797. It operates as a bar to a second suit

between the same parties that involves "identical" "primary rights." Ibid.

Essentially, all claims based on the same "primary rights" must be decided

in a single suit; if not brought initially, they may be barred by res judicata at a

later date. Mycogen Cmp. v. Monsanto Co. (2002) 28 Cal. 4th 888, 896.

Parties are free to waive res judicata. See American Bankers Ins. Co. v.

Avw--1:Jcoming Division (1979) 97 Cal.App.3d 732, 737 ["The parties to a

settlement may, by their agreement, limit the application of even a dismissal

with prejudice."]; Manning v. JitYmer (1969) 273 Cal.App.2d 519, 526

[parties "may settle a pending suit and receive in exchange therefor a

release and dismissal, even a dismissal with prejudice, and limit by the terms qf their agreement the legal rffect qf such dismissal to the party who executes it." (original

emphasis)]

It is well settled that courts, in evaluating res judicata as a defense, may

examine the terms of a settlement agreement to ensure that the parties did

not waive res judicata as a defense. Villacres v. ABM Indus., Inc. (20 1 0) 189

Cal.App.4th 562, 57 7. That is because it is "axiomatic" that res judicata

extend only as far as the parties intended. Ellena v. State qf Cal. (1977) 69

Cal.App.3d 245, 260; see also Louie v. BFS Retail and Commercial Operations,

LLC (2009) 178 Cal.App.4th 1544, 1557-1560, citing United States v. Seckinger

(1970) 397 U.S. 203, 206 n. 6. The California Supreme Court has

explained:

26

The rule of res adjudicata is to prevent vexatious litigation and to require the parties to rest upon one decision in their controversy, but where they expressly agreed to withdraw an issue from the court, the reason for the rule ceases. The issue is not in fact adjudged, and the parties themselves having consented to that method of trial are not entitled to invoke the rule which requires parties to submit their whole case to the court. If they consent to adjudicate their differences piece-meal, there is no reason that the court should extend the rules of law to prevent that which they had expressly agreed might be done.

Miller & Lux, Inc. v. James (1919) 180 Cal. 38, 44; see also Alpha Mechanical,

Heating & Air Conditioning, Inc. v. Travelers Cas. & Sur. Co. if Am. (2005) 133

Cal.App.4th 1319, 1334 [applying the same principle to settlement

agreements, stating, "[w]e have no quarrel with [the appellant's]

proposition that parties may by agreement limit the legal effect of a

dismissal with prejudice so that it would not constitute a retraxit and affect •

their rights in a later pending action."]

Instantly, "waiver" is evidenced, first and foremost, by the parties'

written settlement agreement, page 5, paragraph 6, which, Defendants,

themselves, drafted (3 AA 523):

" ... [Defendants] and [Appellant] waive and release any claims they may have against one another arising from or relating to [the probate matters]." .... "Such releases shall not affect and/ or release... any alleged liability for the death of Victorino Noval."

These "mutual releases" are "limited" releases, pertaining only to the

probate matters. Even Respondent, herself, in her reply brief on demurrer,

concedes that the settlement agreement contains only "a standard limited

mutual release." (3 AA 580: 19) It is "limited" because, among other

reasons, it specifically states that it "shall not affect and/ or release" "any

27

liability for the death of Victorino Noval." This language is clear and

explicit: The settlement and dismissal of the Removal Petition will not

prevent Appellant from pursuing the instant complaint for wrongful death

and elder abuse ofVictorino Noval. That is what the parties intended, and

there can be no other reasonable interpretation of this contractual

language.

The circumstances surrounding the settlement are equally evident of

the parties' intentions to "waive" any application of res judicata to the instant

civil case. When the parties settled probate and the Removal Petition, they

all understood the settlement was only to "a portion of the case." The

probate "portion." Not the trust portion. Not the civil portion. This was a

standard piecemeal settlement of a "portion" of the case that the parties

could agree upon. In that same discussion, Defendants even stated that they

would be "meeting and conferring" and "filing a motion to compel with

respect to certain questions that [Appellant had] declined to answer." This

was because the "portions" of the case not being settled were going to still

go forward, business-as-usual, in particular, the litigation over the wrongful

death and elder abuse.

Moreover, Defendants, themselves, actively litigated this civil case

for nearly a year after agreeing to the probate settlement, never objecting to

it on res judicata grounds, and never seeking its dismissal with the probate

matters. Instead, they filed demurrers on non-res judicata grounds, agreed to

engage in discovery, and actively took depositions. These are not the actions

of litigants who sincerely believed that they had settled the dispute. These

are, instead, the actions of litigants who acknowledge their previous

settlement was only a piecemeal settlement of the probate "portion" of their

larger dispute, and were carrying forward with litigation over the remaining

issues in the larger dispute.

28

3. The Removal Petition involved dijJerent "primary rights-'-' than those asserted instantly.

Again, res judicata only applies where there has been the final

adjudication of "identical" "primary rights" in a previous case. People v.

Barragan (2004) 32 Cal.4th 236, 252-253; Mycogen Cmp. v. Monsanto Co., supra,

28 Cal.4th at 896. The "primary right" in a particular case is simply the

plaintiffs right to be free from the particular injury suffered. Crowlry v.

Katleman (1994) 8 Cal.4th 666, 681, citing Slater v. Blackwood (1975) 15 Cal.3d

791, 795. The focus is on identifying the "legally protected interest" that is

injured that an aggrieved party seeks to adjudicate. Henderson v. Newport-Mesa

Unified School District (2013) 214 Cal.App.4th 478, 499. There should be no

dispute that the instant civil complaint contains three separate and distinct

"primary rights":

a. Physical elder abuse & neglect.

The first and second causes of action for physical elder abuse and

neglect seek to adjudicate Victorino Noval's right, while living, to be free

from the harm he suffered, personally, at the hospital, on or about May 7,

2010. See Welf. & Inst. Code §§15610.57, 15610.63; see also Qyiroz v.

Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1278 [defining the "primary

right" involved in an elder abuse cause of action and distinguishing it from

the "primary right" involved in a wrongful death cause of action].

b. Financial elder abuse.

The third cause of action for financial elder abuse seeks to adjudicate

Victorino Noval's right, while living, to be free from the harm caused to

him, personally, from the financial elder abuse he suffered at the hands of

Defendants, as described in the complaint. See Welf. & Inst. Code

§§15610.30; see also In re Dito (2011) 198 Cal.App.4th 791, 802 ["primary

right" in a financial elder abuse cause of action is the right that an elder not

29

be financially "abused or defrauded"]; see also Grisham v. Philip Morris

U.S.A., Inc., supra, 40 Cal.4th at 645 [financial elder abuse is "a qualitatively

different type of action" than physical elder abuse].

c. Wrongful death.

The fourth cause of action for wrongful death seeks to adjudicate

Appellant's right, as an heir of his father, to be free from the harm he

suffered, personally, as a result of his father's wrongful death on or about

May 7, 2010. See Code Civ. Proc., §§377.60, 377.61; see also Qyiroz v.

Seventh Ave. supra, 140 Cal.App. 4th at 12 7 8 [defining the "primary

right" involved in a wrongful death cause of action and distinguishing it

from the "primary right" involved in a physical elder abuse cause of action].

As explained in Qyiroz v. Seventh Ave. Center, supra, 140 Cal.App. 4th

1256, physical elder abuse and wrongful death adjudicate different

"primary rights," even where the underlying facts seemingly appear to be

the same. Qyiroz, at 1262. This is because elder abuse is a "survival" action

that allows a victim to recover for the harm he/she has suffered. !d. at 1264.

Where the victim dies, the action "survives" and can be pursued by a

representative of the victim. Ibid. But whether the victim dies or not, the

types of recoverable damages are for the injuries suffered by the victim -

not any of the heirs of the victim. !d. at 1265.

To the contrary, wrongful death is not a "survival" cause of action.

!d. at 1263. It only exists because the victim has died. Ibid. Under the

common law, no cause of action would exist, but "by the grace of the

legislature," there is a statutory wrongful death cause of action that belongs,

not to the victim/ decedent, but to each of the individual heirs of the

victim/ decedent, authorizing each of them to recover for their own injuries

suffered, personally, as a result of the wrongful death of the

30

victim/decedent. !d. at 1263-1264. Therefore, as is consistent with the

concept of "primary rights," the harm suffered in an elder abuse action is

different than the harm suffered in a wrongful death action - even though

both may have common facts. !d. at 1264.

d. Removal Petition.

The Removal Petition did not seek to adjudicate any of the "primary

rights" set forth above. It simply sought to adjudicate Appellant's right, as a

beneficiary of the probate estate, to have the probate estate administered

competently, by "personal representatives" who were free from conflicts of

interest. See Prob. Code §8502(e) [a personal representative "may" be

removed from office "for protection of the estate or interested persons"].

This "primary right" was not born when the elder abuse and wrongful

death was born. It was born after Victorino died, after probate was opened,

during the administration of Victorino's estate, in order to address real

and/ or potential problems with the administration of the estate.

The demurrer never offers an analysis of "primary rights," and

instead, argues simply that the Removal Petition involved the same "facts"

and "grounds" as the instant civil case. (1 AA 35: 14-19) But that is simply

not true. The Removal Petition's "facts" are that Defendants were

appointed "personal representatives" of the probate estate and that they

were not administering the probate estate appropriately and/ or that they

had a conflict of interest that was rendering them incapable of properly

administering the estate. ( 1 AA 51: 13-1 7, 55:8-23) The "grounds" were

Prob. Code §8502, et seq. A plain reading of the Removal Petition

illustrates this.

What the demurrer does is manipulate the allegations of the

Removal Petition and the scope of any trial (that would have taken place

31

had it not been dismissed). See Henderson v. Newport-Mesa Unified School District

(20 13) 214 Cal.App. 4th 4 78, 499; see also In re Dito (20 11) 198 Cal.App. 4th

791, 802. These manipulations are exposed when the Removal Petition is

read and evaluated for its "primary rights" and the "legally protected

interests" that it sought to adjudicate. While it is true that the Removal

Petition included, as an exhibit, a former version of the instant civil

complaint and summarized its "facts" in the body of the petition, it did not

do so for adjudication. It only did so as background, in order to set the stage

for explaining to the court the conflict of interest that existed with

Defendants serving as "personal representatives." A plain reading of the

Removal Petition illustrates this and makes readily apparent why the

"primary rights" and "legally protected interests" in the Removal Petition

were different than those asserted instantly.

4. Applying res judicata would be unjust.

Not to diminish the arguments above, but as an additional point, res

judicata is not an inflexible, universally applicable principle; policy

considerations may limit its use where the underpinnings of the doctrine are

outweighed by other factors. Lucido v. Superior Court (1990) 51 Cal.3d 335,

343. Courts decline to apply res judicata where "injustice would result."

Dunkin v. Boskry (2000) 82 Cal.App.4th 171, 181. Injustice is precisely what

would result if the instant complaint were barred by res judicata. The parties

did not bargain for any finality of the instant claims, and awarding finality

would be a complete windfall for Defendants, who gave no consideration

for any such dismissal and fully expected to continue litigating these claims

after settling probate and having the Removal Petition dismissed with

prejudice.

32

D. The Demurrer: standing.

Appellant has standing to assert elder abuse.

The demurrer claims Appellant lacks standing to assert elder abuse.

(1 AA 38: 17-40:2) The complaint's three elder abuse causes of action are

brought pursuant to California Welfare & Institutions Code Section 15610,

et seq., also known as the "Elder Abuse and Dependent Adult Civil

Protection Act." The Act states that where an elder has passed away, his

elder abuse causes of action survive and "the right to commence or

maintain [them] shall pass to the personal representative of the decedent."

Welf. & Inst. Code §15657.3(d)(1). That would obviously mean that

Defendants have "the right to commence" these actions since they are the

"personal representatives" ofVictorino's estate. (3 AA 429)

However, the Act also states that "if the personal representative

refuses to commence or maintain an action [for elder abuse] or if the

personal representative's family or an affiliate ... is alleged to have

committed abuse of the elder ... [any "interested person" as defined in Pro b.

Code §48, including any heir, devisee, or child of the elder] shall have

standing to commence or maintain an action for elder abuse." Welf. & Inst.

Code § 1565 7 .3( d)(2). It is this provision that gives Appellant standing, and it

is this provision that Appellant asserts herein. Defendants are alleged to

have committed the abuse and Appellant, as an interested person in the

estate, has commenced these causes of action. Even in a previous demurrer,

Respondent "concede[d] that, based on the facts alleged ... Welf. & Inst.

Code §15657 does otherwise provide standing for [Appellant] to assert a

claim [for elder abuse]." (3 AA 484:12-15) For this reason, Appellant did

not even consider this a contested issue before Respondent filed the instant

demurrer.

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2. Neglect.

"Neglect" is "the negligent failure of any person having the care or

custody of an elder ... to exercise that degree of care that a reasonable

person m a like position would exercise." Welf. & Inst. Code

§15610.57(a)(1). The demurrer claims that Respondent cannot be liable for

"neglect," as a matter of law, because Victorino was not "in the care and

custody" of her when the neglect occurred. However, the complaint was

prepared for this type of argument and specifically pleaded that

Respondent's "care" and/ or "custody" of Victorino was through her

assertion as the health care surrogate and her order, direction, and control

that the hospital staff "neglect" Victorino's oxygen support, nutrition,

health, and safety against the express desires of Victorino's health care

agent, Appellant. (1 AA 13:6-20)

Legally, it should be undisputed that the hospital staff had "care or

custody" ofVictorino. See Welf. & Inst. Code §15610.37; see also Mack v.

Soung (2000) 80 Cal.App.4th 966, 974. However, as the complaint seeks to

prove, that "care or custody" was imputed upon Respondent by way of her

assertions to order, direct, and control the hospital staffs "care" and/ or

"custody" of Victorino. See Ayer v. Robinson) supra) 163 Cal.App.2d at 428 [a

person who urges and encourages an attack is liable for the attack]. Again,

she was the one who ordered the "neglect" so she should be liable for it as if

she committed it herself. This fits squarely within the law because those,

who by their conduct or relationship to a perpetrator, have the ability to

control the conduct of the perpetrator, can be held liable for the "neglect"

the perpetrator causes upon an elder. See People v. Heitzman (1994) 9 Cal.4th

189, 201 [the duty to prevent "neglect" is not imposed on everybody, just

on those who have a responsibility to prevent it].

35

Furthermore, it is said that "neglect" within the elder abuse Act

refers "to the failure of those responsible for attending to the basic needs

and comforts of elderly or dependent adults, regardless of their professional

standing, to carry out their custodial obligations." Carter v. Prime Healthcare

Paradise Vall'!)! LLC (2011) 198 Cal.App.4th 396, 404. This applies, instantly,

to Respondent. She asserted herself as the health care surrogate for

Victorino. That carried with it meaningful fiduciary duties she had to abide

by, in good faith, and it carried with it the responsibility to only act in good

faith when making the decision to cease attending to Victorino's "basic

needs and comforts."

Had these decisions been made in good faith, Respondent would be

immune from liability. See Pro b. Code §4 7 41. But they were not. They

were made through fraud, deceit, concealment, and manipulation, knowing

that she was doing something unauthorized in the DPOA. This role

Respondent played, as decision-maker, "regardless of [her] professional

standing," involved responsibilities related to "custodial obligations" of

Victorino, and thus, renders her actions and/ or omissions subject to liability

under the Act for "neglect."

3. Financial elder abuse.

The demurrer claims, with respect to financial elder abuse, that "the

complaint fails to allege that [Respondent] committed any wrongful act," (1

AA 41: 1 7 -18) that "there is no allegation that any act of [Respondent]

caused Victorino harm," (1 AA 41:21-22) and that "the allegations ... make

no sense" regarding Respondent's theft of $2 million. (1 AA 41 :24-26)

Regarding the first and second claims, the complaint makes numerous

allegations of "wrongful acts" (1 AA 14: 16-28) and specifically alleges,

verbatim, that Respondent "caused harm to Victorino" by way of this

financial elder abuse. (1 AA 16:25-26)

36

Regarding the third claim, that the allegations "make no sense," the

complaint alleges that Victorino "had the right to have this $2 Million" and

that it "was his property." (1 M 16:7) Respondent took it from him,

without his consent, and believed, "due to [Victorino] 's health status,

condition, and vulnerabilities, and due to the duress and undue influence

she and her agents placed on him, that she could get away with [never

repaying] it." (1 M 16:12-14) She took this money, without Victorino's

consent, and never paid it back. (1 M 16:7-14) This makes "sense" and, as

a matter oflaw, constitutes financial elder abuse.

37

VII.

CONCLUSION For the reasons set forth herein, the demurrer should not have been

sustained on statute of limitations grounds. The defense was never raised in

the demurrer, so it should have been considered "waived," and the trial

court's sua sponte assertion of it, at hearing, violated Appellant's right to due

process. In addition, delayed "accrual" was adequately pleaded, and

financial elder abuse was timely, with-or-without any benefit of delayed

"accrual." Having asserted statute of limitations, the trial court should have

also allowed Appellant leave to amend, and its failure to do so was an abuse

of discretion.

Regarding the actual demurrer, there were no grounds set forth

therein that justified sustaining the demurrer without leave to amend. Res

judicata does not apply because Respondent "waived" it, and because the

previous case involved different "primary rights." Also, Appellant has

standing to assert elder abuse, and the complaint has properly pleaded each

of its elder abuse causes of action, as a matter of law. For these reasons,

Appellant respectfully seeks that the judgment(s) of dismissal be reversed,

and on remand, the trial court be directed to vacate the order sustaining

demurrer and enter a new and different order overruling it. Appellant also

respectfully requests an award of costs on appeal.

Date: November 11, 2013

38

Respectfully submitted,

Casey Young, Esq. Attorney for Appellant, Hector Noval

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 8.204(c) of the California Rules of Court, I hereby

certify that this brief contains 10,349 words, including footnotes and this

Certificate of Compliance. In making this certification, I have relied on the

word count of the computer program used to prepare this brief.

39