Filed 1/22/15 Noval v. Frost CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


HECTOR A. NOVAL,

     Plaintiff and Appellant,                                          G048911

         v.                                                            (Super. Ct. No. 30-2012-00620923)

LOURDES FROST et al.,                                                  OPINION

     Defendants and Respondents.



                   Appeal from a judgment and an order of the Superior Court of Orange
County, Sheila Fell, Judge. Reversed. Request for judicial notice denied.
                   Law Offices of Casey T. Young and Casey Young for Plaintiff and
Appellant.
                   Bidna & Keys and Richard D. Keys for Defendant and Respondent Lourdes
Frost.
                   No appearance for Defendants and Respondents Tania Noval and Victor
Noval.
                                          *                  *                  *
              Three siblings, Lourdes Frost (Lourdes), Tania Noval (Tania), and Victor
Noval (Victor), allegedly directed a hospital to take their father, Victorino Noval
(decedent), off life support and administer fatal doses of morphine, without the consent of
their brother, Hector Noval (Hector),1 whose permission was required under a durable
power of attorney for healthcare. Lourdes, Tania, and Victor also allegedly absconded
with cash and other personal property of decedent while he was hospitalized. A flurry of
lawsuits and proceedings followed. In the one generating this appeal, Lourdes filed a
demurrer to Hector’s complaint on the basis of res judicata, standing, and failure to state
facts sufficient to constitute a cause of action. The court, apparently exasperated with the
plethora of proceedings, sustained the demurrer without leave to amend, on the basis of
the statute of limitations—a ground not raised in the demurrer.
              Hector appeals from the judgment of dismissal as to Lourdes following the
sustaining of the demurrer. He also appeals from a postjudgment order dismissing the
complaint as to defendants who had not been served, which would include Tania and
Victor. He argues, inter alia, that the court had no right to raise the statute of limitations
sua sponte. We agree. However, “‘[w]hen a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause of action on any theory.
[Citations.]’” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303,
309.) Here, we cannot conclude that Hector failed to allege facts sufficient to state a
viable cause of action. We reverse.
                                               I
                                           FACTS
A. Allegations of Complaint:
              In his complaint, Hector alleged the following:


1             We refer to the parties by their first names for ease of reference. We mean
no disrespect. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)


                                               2
              Decedent was a fully functioning 78-year-old with about $60 million in
assets and $3 million in annual income. On April 28, 2010, decedent was admitted to the
hospital with pneumonia. He was intubated and, when sedated, became temporarily
incapable of making his own medical decisions. By the end of the 10-day hospitalization,
decedent had overcome the pneumonia, had had his intubation removed, had become
distress free, and could make “‘eye contact for more than 10 seconds.’” Nonetheless,
Lourdes, Tania, and Victor ordered hospital staff to terminate decedent’s treatment and
administer fatal doses of morphine on May 7, 2010, causing his death that day. The only
reason the threesome so directed hospital staff was to hasten decedent’s death and collect
their inheritances.
              According to Hector, decedent had a durable power of attorney for health
care (health care power) that named Hector and Lourdes as joint attorneys-in-fact, such
that the unanimous consent of the two of them was required for action to be taken.
However, Lourdes, Tania and Victor falsely represented to hospital staff that Hector
concurred in their decision to end decedent’s life, and concealed the existence of the
health care power from Hector himself. Furthermore, at the same time that they directed
hospital staff to withdraw decedent’s treatment and end his life, they misrepresented to
Hector that decedent’s treatment would be continued indefinitely. On May 7, 2010,
Lourdes contacted Hector and told him decedent had died of natural causes. She did not
mention “any withdrawal of treatment, terminal extubation, or fatal injections of
morphine.” So, Hector had no reason to suspect foul play.
              Hector alleged that he did not learn of the existence of the health care
power until February 2011, when it was disclosed during probate proceedings. Health
care power in hand, Hector was then able to obtain a copy of decedent’s hospital medical
records, which disclosed a set of facts entirely different from what he had previously
been told. Apparently, Lourdes had told hospital staff that decedent had advanced



                                             3
Parkinson’s disease, had been declining over the preceding six months, had a poor quality
of life, would not want to be hooked up to a ventilator, would not want to be resuscitated,
and would want to die peacefully. Lourdes, Tania and Victor met with hospital staff on
May 4 and 5, 2010 and represented that the whole family, Hector included, “desired
terminal extubation for decedent.” (Capitalization omitted.) They also represented to
hospital staff, on May 5 and 6, 2010, that Hector “was a violent person, a drug addict,
someone with paranoid personality,” who had “‘threatened violence’ against them . . .
and that they were ‘afraid’ of him.” Hector further alleged that his siblings had
represented to hospital staff that he had ulterior motives and was unfit to make health
care decisions for decedent.
              Lourdes, Tania and Victor met with hospital staff on May 7, 2010 for “the
planned withdrawal of decedent’s treatment and fatal injections or morphine[.]”
(Capitalization omitted.) Even though they were informed that decedent was improving,
they declined “the opportunity to . . . cancel decedent’s planned death[.]” (Capitalization
omitted.) Moreover, they again falsely informed hospital staff that Hector was in favor of
the plan, and said he simply elected not to be present. To the contrary, Hector was not
even aware of the plan. Hospital staff removed the ventilator, withdrew oxygen support,
removed the nutritional tubes, and administered fatal doses of morphine. According to
Hector, decedent would have lived absent these acts.


B. Procedural History:
              Probate proceedings were commenced in the San Bernardino County
Superior Court (Estate of Victorino Noval (No. PRODS 1000489)) (Probate
Proceedings). On August 10, 2010, Lourdes and Tania were appointed executors of the
will of decedent.




                                             4
              In February 2011, Hector filed, in the Probate Proceedings, a Probate Code
section 850 petition for the determination of title to seven pieces of real property. The
real properties had been listed on the inventory and appraisal in the Probate Proceedings,
but Hector claimed the properties belonged to him.
              On about March 14, 2011, Hector filed a complaint against Lourdes, Tania,
Victor, and others, in a civil action in the San Bernardino County Superior Court (Noval
v. Noval (No. CIVVS 1101520)). He filed a first amended complaint two weeks later,
asserting causes of action for physical elder abuse, neglect, wrongful death, financial
elder abuse, conspiracy, aiding and abetting, fraud, conversion, and breach of fiduciary
duty. The lawsuit was transferred to the Orange County Superior Court (Noval v. Noval
(No. 30-2011-00498440)) (First Lawsuit). At some point, Hector dismissed the First
Lawsuit without prejudice.
              On April 13, 2011, Hector filed, in the Probate Proceedings, a petition to
remove Lourdes and Tania as executors and to appoint himself as successor executor. He
alleged, inter alia, that while decedent was still alive in the hospital, they had entered his
home, opened his safe, and taken his estate planning documents and other property,
including legal and financial documents and $400,000 in cash. He further alleged that
they had failed to list the items they took on the inventory and appraisal. Hector
maintained that Lourdes and Tania had conflicts of interest, inasmuch as they surely
would not enforce the right of decedent’s estate to the return of the assets wrongfully
taken.
              On May 31, 2012, Hector filed another lawsuit, this one against Lourdes
and Tania, in the Orange County Superior Court (Noval v. Frost (2012, No. 30-2012-
00573131)) (Second Lawsuit). This lawsuit asserted many of the same causes of action
as the First Lawsuit.




                                               5
              About three weeks later, on June 21, 2012, Hector, on the one hand, and
Lourdes and Tania in their capacities as executors of decedent’s will and trustees of his
trust, on the other hand, signed a settlement agreement with respect to the two petitions
Hector had filed in the Probate Proceedings. Among other things, Lourdes and Tania
agreed to distribute the seven properties in question to Hector as part of his distributive
share of decedent’s trust estate. In exchange, Hector agreed to dismiss the Probate Code
section 850 petition and the removal petition.
              On August 7, 2012, Hector filed a first amended complaint in the Second
Lawsuit. Thereafter, Lourdes filed a demurrer, primarily based on lack of standing.
Lourdes raised a statute of limitations defense with respect to one of the 12 causes of
action—the one pertaining to physical elder abuse under Welfare and Institutions Code
section 15610.63.
              Although we find nothing in the record on the point, according to Attorney
Casey Young, counsel for Hector, in December 2012, the court sustained the demurrers
in part, overruled them in part, and granted Hector leave to amend. Lourdes represents
that “the primary ground upon which the Court . . . sustained the demurrer” was standing.
Further according to Attorney Young, after filing a second amended complaint, he
realized that he had added new parties and new causes of action without first obtaining
leave of the court. Because of this procedural error, he dismissed the Second Lawsuit
without prejudice and refiled the matter as a new complaint.
              The record reflects that, on December 28, 2012, Hector filed, in the Orange
County Superior Court, the underlying action for physical elder abuse, neglect, financial
elder abuse, wrongful death, and conspiracy, against Lourdes, Tania, and Victor (Noval.
v. Frost (2013, No. 30-2012-00620923)) (Third Lawsuit). In February 2013, Lourdes
filed a demurrer to the complaint, on the basis of res judicata, standing, and failure to
state facts sufficient to constitute a cause of action.



                                               6
              The court sustained the demurrer on the basis of the statute of limitations,
and entered a judgment of dismissal as to Lourdes. 2 Hector appeals.
                                               II
                                        DISCUSSION
A. Standard of Review:
              “We independently review the ruling on a demurrer and determine de novo
whether the complaint alleges facts sufficient to state a cause of action. [Citation.] We
assume the truth of the properly pleaded factual allegations, facts that reasonably can be
inferred from those expressly pleaded, and matters of which judicial notice has been
taken. [Citation.] We construe the pleading in a reasonable manner and read the
allegations in context. [Citation.] We affirm the judgment if it is correct on any ground
stated in the demurrer, regardless of the trial court’s stated reasons. [Citation.]”
(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.)


B. Statute of Limitations:
              (1) Hearing—
              Although the grounds raised in the demurrer were res judicata, standing,
and the failure to state facts sufficient to constitute a cause of action, Hector is correct
that the court, sua sponte, ruled on the basis of the statute of limitations. At the hearing
on the demurrer, immediately after the lawyers announced their appearances, the court
stated: “From what I can see the statute of limitations has run on the whole case. I’m

2              It would appear that legal battles between the parties have not been limited
to the three above-referenced lawsuits and the Probate Proceedings. The record on
appeal indicates that there has been at least one other matter, entitled In re Victorino
Noval Revocable Trust (Super. Ct. Orange County, No. 30-2011-00457465), commenced
sometime prior to March 15, 2012 (on which date a deposition was taken). Furthermore,
Lourdes represents, without citation to the record, that Hector filed a petition in the Los
Angeles County Superior Court to obtain an order to disinter decedent’s remains, a
request that purportedly had already been rejected by the Orange County Superior Court.


                                               7
going to sustain the demurrer without leave.” Attorney Young replied that the statute of
limitations was not an issue raised in the demurrer. The court responded: “The statute
has run. There’s no point to go on.”
              Attorney Young began to address tolling and the court quickly interrupted
with: “What you’ve shown me does not toll the statute.” Attorney Young requested
leave to amend to plead more specific facts with respect to tolling. The court replied: “I
think you’ve done it a few times in a similar lawsuit in several courts, including this one.
I’m not going to give you leave to amend unless there’s a reason to do so.”
              Attorney Young continued to assert that the statute of limitations was not at
issue and that he had had no opportunity to brief the matter. The court said: “Well, yeah,
you did. You talked about the power of attorney and how this would toll the statute. It
doesn’t.” However, the court would not entertain discussion on the point.
              We note that while the demurrer to the first amended complaint in the
Second Lawsuit raised the issue of the statute of limitations with respect to one cause of
action, for physical elder abuse, the demurrer to the complaint in the Third Lawsuit did
not raise the statute of limitations at all. Nonetheless, apparently out of an abundance of
caution, Hector, in his complaint in the Third Lawsuit, indicated that he had no reason to
suspect wrongdoing before February 2011. That was when he found out that he had been
named in the health care power as one of decedent’s joint attorneys-in-fact—a matter
Lourdes, Tania, and Victor had concealed from him. Thereafter, in March 2011, he used
the health care power to obtain decedent’s medical records, which demonstrated that
decedent had died not of natural causes, as Lourdes had represented, but rather of what
Hector called “planned euthanization.” However, Hector’s discussion pertained only to
the facts of discovery, and did not address either legal authorities on the discovery rule,
or the lengths of the statutes of limitations applicable to the five causes of action.




                                               8
               (2) Analysis—
               As Hector duly observes, a complaint does not fail to state a cause of action
just because a cause of action may be barred by the statute of limitations. Rather, the
defense of the statute of limitations is personal to the defendant and if the defendant does
not raise the defense in his or her demurrer, the defense is waived. (Bank of America etc.
Assn. v. Ames (1936) 18 Cal.App.2d 311; see also Salton Bay Marina, Inc. v. Imperial
Irrigation Dist. (1985) 172 Cal.App.3d 914, 940, fn. 4.) It follows that it was not the
place of the trial court to raise the defense on Lourdes’s behalf, thereby denying Hector
the opportunity to present his argument on the matter. (Cf. Day v. McDonough (2006)
547 U.S. 198 [court sua sponte raised timeliness of habeas corpus]; McMillan v. Jarvis
(4th Cir. 2003) 332 F.3d 244 [same].)
               Lourdes does not respond to these points or these authorities. Rather, she
focuses her attention on the arguments raised in the demurrer, and reminds us that the
appellate court must affirm the ruling sustaining a demurrer without leave to amend if
any of the grounds stated in the demurrer is correct. (Fremont Indemnity Co. v. Fremont
General Corp., supra, 148 Cal.App.4th at p. 111.) However, she does mention the statute
of limitations with respect to only one of the causes of action—the physical elder abuse
cause of action. She now mentions that the statute of limitations is two years (Code Civ.
Proc., § 335.1) and contends there should be no tolling, because the facts as she presents
them do not support the assertion that Hector was unaware that he was one of decedent’s
attorneys-in-fact under the health care power.
               However, even if we were to consider the statute of limitations, we would
assume the facts as alleged in the complaint, not as proffered by a defendant, are true for
the purposes of the demurrer. (Stueve Bros. Farms, LLC v. Berger Kahn, supra, 222
Cal.App.4th at pp. 309-310.) Moreover, “‘“‘[t]he question of when there has been a
belated discovery of the cause of action, . . . is essentially a question of fact . . . [and] [i]t



                                                 9
is only where reasonable minds can draw but one conclusion from the evidence that the
question becomes a matter of law.’ [Citations.]” [Citations.]’” (Id. at p. 315.)
Consequently, “‘“‘a demurrer on the ground of the bar of the statute of limitations does
not lie where the complaint merely shows that the action may have been barred. It must
appear affirmatively that, upon the facts stated, the right of action is necessarily barred.’
[Citations.]” [Citations.]’ [Citation.]” (Id. at p. 313.) So, had the demurrer raised the
issue of the tolling of the statute of limitations as Lourdes now discusses, it still would
have been error to sustain the demurrer without leave to amend.
              But the point of the matter is that the demurrer to the complaint in the Third
Lawsuit did not raise the statute of limitations. Even were we to go back in time and
consider the demurrer to the first amended complaint in the Second Lawsuit, we would
see that it mentioned the statute of limitations with respect to only the physical elder
abuse cause of action and none of the others. There is no basis for even conjuring up a
historical challenge to the other four causes of action raised in the Third Lawsuit.
              We agree with Hector. It was improper for the court to raise the issue of
the statute of limitations sua sponte and to dismiss all of Hector’s causes of action
without permitting him leave to amend. Moreover, the ruling was doubly problematic in
light of Welfare and Institutions Code section 15657.7, which provides a four-year statute
of limitations for financial elder abuse. Lourdes does not explain how it is that the
entirety of the lawsuit could possibly be barred in light of that statute.
              We turn, then, to the grounds that were actually raised in Lourdes’s
demurrer.


C. Res Judicata:
              On June 21, 2012, Lourdes and Tania, in their capacities as executors of
decedent’s estate and trustees of decedent’s trust, entered into a settlement agreement



                                              10
with Hector in the Probate Proceedings. The agreement settled Hector’s claims under his
Probate Code section 850 petition regarding title to seven identified real properties and
his petition to remove Lourdes and Tania as executors of decedent’s will.
              The settlement agreement provided that, upon court approval thereof, the
seven properties would be transferred to Hector, as preliminary distributions from his
share of decedent’s trust estate, and his two petitions would be dismissed with prejudice.
Thereupon, Lourdes and Tania, as executors of decedent’s estate and trustees of
decedent’s trust, on the one hand, and Hector, on the other, would release their respective
claims relating to the properties, the Probate Code section 850 petition, and the removal
petition.
              Of particular importance to the matter before us, paragraph 6 of the
settlement agreement stated in pertinent part: “[T]he releases by Hector shall enure to the
benefit of Lourdes Frost and Tania Noval, individually, as well as all beneficiaries of the
Trust. 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 [decedent].” (Italics added.)
              As Lourdes stated in her demurrer, Hector’s petition for removal had
attached thereto a copy of the March 28, 2011 first amended complaint filed in the
Second Lawsuit. Lourdes further stated: “The petition and attached civil complaint
alleged the same basic facts and made the same allegations of ‘wrongdoing’ as the
instant action . . . ,” including that Lourdes and Tania concealed the health care power
from Hector, wrongfully directed hospital staff to remove decedent from life support, and
removed cash and other property from decedent’s home. (Italics added.)
              In her demurrer, Lourdes also said that the court had dismissed Hector’s
removal petition with prejudice, in accordance with the terms of the settlement
agreement. Citing Estate of Redfield (2011) 193 Cal.App.4th 1526, she claimed that



                                              11
because the removal petition had been dismissed with prejudice, all of the claims raised
in the Second Lawsuit were barred by the doctrine of res judicata and could not be raised
again in the Third Lawsuit. She maintains this position on appeal.
              Her citation to Estate of Redfield, supra, 193 Cal.App.4th 1526 is
unavailing. In Redfield, several siblings got into a dispute over whether their mother’s
will was valid and whether $136,000 one sibling had withdrawn from their mother’s bank
account shortly before her death should be included in her estate. Two siblings filed will
contests, as well as Probate Code section 850 petitions in which they requested the court
to determine that the $136,000 was part of the mother’s estate. (Id. at pp. 1528-1530.)
              Ultimately, the siblings settled both the will contests and the petitions for
determination of title to the $136,000. They sought court approval of the settlement,
which included an agreement that the decedent’s estate would be divided in equal shares
per intestate succession, and the dismissal with prejudice of the petition for probate of the
will. Furthermore, the will contests and the petitions for determination of title were
withdrawn. One sibling nonetheless objected to the settlement, on the ground that the
$136,000 was not an inter vivos gift, and should be included in the estate. Decedent’s
granddaughter, who previously had been appointed co-administrator of the estate, filed a
petition for instructions, seeking clarification of the settlement, and arguing that it was
ambiguous as to whether the $136,000 was to be included in the estate or not. (Estate of
Redfield, supra, 193 Cal.App.4th at pp. 1530-1531.)
              The court heard argument on both the petition for approval of the
settlement and the petition for instructions. It denied the petition for instructions,
approved the settlement, denied the petition to probate the will, and dismissed with
prejudice the will contests and the petitions for determination of title as to the $136,000.
It entered an order accordingly and no appeal was taken. (Estate of Redfield, supra, 193
Cal.App.4th at p. 1531.) More than a year and a half later, two of the settling siblings



                                              12
objected to an accounting filed in the proceedings, on the basis that it failed to include the
$136,000 as part of the estate. The court held a trial on the matter and ultimately
determined that the $136,000 was part of the estate after all. (Id. at pp. 1532-1533.) The
determination was reversed on appeal, on the basis of res judicata. (Id. at pp. 1533-
1537.)
              As the appellate court in Estate of Redfield, supra, 193 Cal.App.4th 1526
observed: “‘Res judicata, or claim preclusion, prevents relitigation of the same cause of
action in a second suit between the same parties . . . .’” (Id. at p. 1534.) It further stated:
“Application of the doctrine of res judicata requires an affirmative answer to the
following three questions: (1) Was there a final judgment on the merits? (2) Was the
issue decided in the prior adjudication identical with the one presented in the subsequent
litigation? (3) Was the party against whom the principle is involved a party . . . to the
prior adjudication? [Citation.]” (Ibid.) The appellate court in Redfield answered all
three questions in the affirmative, on the facts before it. (Ibid.)
              Of particular importance in the matter before us, the appellate court in
Estate of Redfield, supra, 193 Cal.App.4th 1526 observed that the issue adjudicated by
the probate court on the petitions for determination of title was identical to the one raised
in the later challenge to the accounting—whether the $136,000 was or was not part of the
estate. The appellate court observed that the probate court’s approval of the settlement
and dismissal of the petitions for determination of title constituted a final judgment on the
merits to the effect that the $136,000 was not included in the estate. (Id. at p. 1535.)
              Estate of Redfield, supra, 193 Cal.App.4th 1526 is distinguishable from the
case before us. The settlement agreement between Hector, Lourdes and Tania provided
that Hector’s removal petition would be withdrawn. In other words, he agreed to stop
seeking a determination that Lourdes and Tania should not be executors. The settlement
agreement did not include a provision that the Second Lawsuit would also be dismissed



                                              13
with prejudice. Just because Hector attached to his removal petition a copy of the first
amended complaint in the Second Lawsuit, to show why he felt Lourdes and Tania
should not be executors, did not mean that when he withdrew his request that they be
removed as executors he was abandoning his monetary claims against them. To the
contrary, paragraph 6 of the settlement agreement specifically stated: “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
[decedent].” In other words, he preserved that claim.
              In contrast, there is no indication that, in Estate of Redfield, supra, 193
Cal.App.4th 1526, there was an explicit agreement to preserve certain claims for later
resolution. Moreover, in Estate of Redfield, unlike the case before us, there was a dispute
as to the terms of the settlement itself that was resolved by probate court order more than
one and a half years before the matter was dredged up again in the same probate
proceedings. In the case before us, however, the probate court did not adjudicate the
merits of the Second Lawsuit and make a determination whether Lourdes, Tania and
Victor owed monetary damages to Hector.
              Given this, in the matter before us we must answer the second of the three
questions bearing upon res judicata in the negative. There was no identity of issues
between the Probate Proceedings and the Third Lawsuit. That is, the court in the Probate
Proceedings decided whether the settlement, including the agreement to dismiss with
prejudice the removal petition, should be approved. The dismissal of the removal
petition, with prejudice, barred any subsequent claim that Lourdes and Tania should be
removed as executors based on the grounds stated therein, including the grounds alleged
in the first amended complaint in the Second Lawsuit. It did not bar a claim for damages
on the ground that Lourdes and Tania had acted wrongfully, as described in that lawsuit.
This is especially so when the court’s approval of the settlement agreement necessarily



                                              14
constituted an approval of the paragraph 6 provision to the effect that the claim was
preserved.
              Lourdes’s citation to Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th
788 does not convince us otherwise. As the court in that case observed: “To determine
whether two proceedings involve identical causes of action for purposes of claim
preclusion, California courts have ‘consistently applied the “primary rights” theory.’
[Citation.]” (Id. at p. 797.) “‘In California the phrase “cause of action” is often used
indiscriminately . . . to mean counts which state [according to different legal theories] the
same cause of action. . . .’ [Citation.] But for purposes of applying the doctrine of res
judicata, the phrase ‘cause of action’ has a more precise meaning: The cause of action is
the right to obtain redress for a harm suffered, regardless of the specific remedy sought or
the legal theory (common law or statutory) advanced. [Citation.]” (Id. at p. 798.)
              The court in Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th 788,
addressed whether a wife who, during her husband’s lifetime had both filed, and
dismissed with prejudice, a loss of consortium lawsuit against the defendant cigarette
manufacturer, could later bring a wrongful death lawsuit against the same defendant. (Id.
at pp. 791-792.) With respect to the loss of consortium action, the court concluded that
the primary right at issue “was the right not to be wrongfully deprived of spousal
companionship and affection, and the corresponding duty was the duty not to wrongfully
deprive a person of spousal companionship and affection. The breach was the conduct of
defendant . . . that wrongfully induced plaintiff’s husband to smoke defendant’s
cigarettes.” (Id. at p. 798, italics omitted.) The court held that once the plaintiff had
dismissed with prejudice her original lawsuit for loss of consortium, she “could not later
allege the same breach of duty in a second lawsuit against defendant, based on a new
legal theory (statutory wrongful death).” (Ibid.) The court further explained: “[T]he two
actions concern the same plaintiff seeking the same damages from the same defendant for



                                              15
the same harm, and to that extent they involve the same primary right.” (Id. at p. 804.)
              Lourdes says Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th 788
shows that the same primary rights—the alleged wrongful killing of decedent and the
alleged wrongful taking of his property—were at issue in both the removal petition in the
Probate Proceedings and in the Third Lawsuit. We disagree. The primary rights at issue
in the Third Lawsuit were the rights of decedent not to suffer his wrongful death at the
hands of defendants and not to suffer the wrongful taking of his property by defendants.
The primary right at issue in the removal petition in the Probate Proceedings was the
right of a party interested in the estate of decedent to have the estate administered by
executors who were free from conflicts of interest and who would properly sequester,
inventory, and distribute all assets of the decedent passing under his will.
              Even if we were to agree with Lourdes’s characterization of the primary
rights at issue, we would note that Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th
788 is distinguishable from the matter before us and does not control its outcome.
Boeken did not involve a settlement agreement wherein the parties specifically excepted
certain matters from the settlement and preserved them for later resolution. Although
Lourdes maintains that paragraph 6 of the settlement agreement did not carve out an
exception, it clearly did. The settlement agreement, by its terms, did not serve to “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 [decedent].”
Consequently, the dismissal with prejudice of the removal petition, in effectuation of the
settlement agreement, did not operate as a final judgment as to those claims and the
doctrine of res judicata does not bar them.




                                              16
D. Standing:
               Hector alleged physical elder abuse (Welf. & Inst. Code, § 15610.63),
neglect (Welf. & Inst. Code, § 15610.57), and financial elder abuse (Welf. & Inst. Code,
§ 15610.30), in his first, second and third causes of action, respectively. In his fifth cause
of action, he alleged conspiracy to commit physical elder abuse, neglect and wrongful
death. In her demurrer, Lourdes asserted that Hector lacked standing to assert each of
these causes of action.3
               Lourdes argued that these causes of action were each based on duties she
allegedly owed to decedent, not to Hector, so he had no standing to sue on them. She
also cited Code of Civil Procedure section 377.30, which provides: “A cause of action
that survives the death of the person entitled to commence an action or proceeding passes
to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section
7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by
the decedent’s personal representative or, if none, by the decedent’s successor in
interest.” Lourdes said that, inasmuch as she had been appointed decedent’s personal
representative, it was she, not Hector, who had the right to pursue any cause of action that
survived decedent’s death.
               In addition, Lourdes stated that Welfare and Institutions Code section
15657 et seq. provided no different result.4 Hector maintains that Welfare and


3             Lourdes did not appear to argue that Hector lacked standing to bring the
fourth cause of action, for wrongful death.

4              She commented that Hector should be well familiar with the issue
inasmuch as the primary reason the court had sustained the demurrer to Hector’s first
amended complaint in the Second Lawsuit was Hector’s lack of standing. Interestingly,
Lourdes also stated, in her reply to Hector’s opposition: “The complaint simply fails to
allege the basis upon which Hector asserts he has standing to bring a claim for ‘elder
abuse.’ While that defect can possibly be cured by amendment, it does not change the
fact that the complaint, as pleaded, is defective.” (Italics added.)


                                             17
Institutions Code section 15657.3, subdivision (d)(2) does indeed confer standing upon
him. We agree.
              Welfare and Institutions Code section 15657.3, subdivision (d)(1) provides:
“Subject to paragraph (2) . . . , after the death of the elder or dependent adult, the right to
commence or maintain an action shall pass to the personal representative of the
decedent. . . .” However, paragraph (2) states: “If the personal representative refuses to
commence or maintain an action or if the personal representative’s family or an affiliate,
. . . is alleged to have committed abuse of the elder or dependent adult, the persons
described in subparagraphs (A), (B), and (C) of paragraph (1) shall have standing to
commence or maintain an action for elder abuse. . . .” (Welf. & Inst. Code, § 15657.3,
subd. (d)(2).) Hector is a person described in subparagraph (C) of paragraph (1),
inasmuch as he is an “interested person” as defined in Probate Code section 48.5
Furthermore, Lourdes, as the personal representative, refuses to commence an action,
against herself, Tania and Victor, and she and those siblings are alleged to have
committed the elder abuse in question. So, Hector is correct that, under Welfare and
Institutions Code section 15657.3, subdivision (d)(2), he has standing to pursue the
causes of action in question.
              The point of the matter is that when the person who allegedly wronged the
decedent is the one with standing to commence litigation to right the wrong, but
obviously will never undertake to do so, it cannot be the case that the wrongdoer gets
away with the wrongful act simply because no one has standing to pursue him or her.
(Cf. Stueve Bros. Farms, LLC v. Berger Kahn, supra, 222 Cal.App.4th at p. 316; Estate
of Lowrie (2004) 118 Cal.App.4th 220, 231.) In other words, it is untenable to assert that


5                 Probate Code section 48, subdivision (a)(1), defines an “interested person”
as “[a]n heir, devisee, child, . . . beneficiary, and any other person having a property right
in . . . a trust estate or the estate of a decedent . . . .” We understand Hector to be both the
child of the decedent and a beneficiary of his trust.


                                              18
one who allegedly wrongfully took money and other property from a decedent before his
death, thereby removing the same from the decedent’s estate in which other persons were
entitled to share, could not be challenged in court because he or she had fortuitously been
named as personal representative in the decedent’s estate plan. The same holds true for
someone who committed the unlawful killing of a decedent with malice aforethought, as
Hector alleges in his complaint. Rather, “where a [personal representative] cannot or will
not enforce a valid cause of action that [he or she] ought to bring . . . , a . . . beneficiary
may seek judicial compulsion against the [personal representative].” (Saks v. Damon
Raike & Co. (1992) 7 Cal.App.4th 419, 427 [trust context]; see also King v. Johnston
(2009) 178 Cal.App.4th 1488, 1500-1502; Harnedy v. Whitty (2003) 110 Cal.App.4th
1333, 1339-1342; cf. Prob. Code, § 16420; Estate of Bowles (2008) 169 Cal.App.4th 684,
692-694.)


E. Failure to State a Cause of Action:
               (1) Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.
               Code, § 15600 et seq.) (the Elder Abuse Act)—
               Finally, in her demurrer, Lourdes challenged each cause of action for
failure to state facts constituting a cause of action. Hector contends the allegations of the
complaint satisfied the requirements of the Elder Abuse Act.
               Lourdes responds that it is unclear whether the provisions of the Elder
Abuse Act were even intended to give rise to independent cause of actions, citing ARA
Living Centers - Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556 and Berkley
v. Dowds (2007) 152 Cal.App.4th 518. These are not the most persuasive authorities,
however. The court in ARA Living Centers addressed an issue not present in the case
before us, regarding the retroactivity of Welfare and Institutions Code section 15657.
(ARA Living Centers - Pacific, Inc. v. Superior Court, supra, 18 Cal.App.4th at pp. 1558,



                                               19
1560-1562.) In so doing, the court remarked that, inasmuch as “elder abuse” had been
defined by statute nearly a decade before the enactment of section 15657, the section “did
not add a cause of action.” (ARA Living Centers - Pacific, Inc. v. Superior Court, supra,
18 Cal.App.4th at pp. 1560, 1563.) The court in Berkley v. Dowds, supra, 152
Cal.App.4th 518 held that a demurrer to a cross-complaint was properly sustained
without leave to amend, where the cross-complaint failed to allege facts satisfying the
requirements of the applicable provisions of the Elder Abuse Act. (Id. at pp. 521-522,
529-530.) The Berkley court, citing ARA Living Centers without analysis, commented in
its introductory remarks that the Elder Abuse “Act does not create a cause of action as
such, but provides for attorney fees, costs, and punitive damages under certain conditions.
[Citations.]” (Berkley v. Dowds, supra, 152 Cal.App.4th at p. 529.)
              We conclude the better view is expressed in Perlin v. Fountain View
Management, Inc. (2008) 163 Cal.App.4th 657, in which the court directly addressed the
question whether the Elder Abuse Act creates a cause of action. (Id. at pp. 664-666.)
After considering certain Supreme Court authorities, the Perlin court stated plainly that
the Elder Abuse “Act creates an independent cause of action. [Citations.]” (Perlin v.
Fountain View Management, Inc., supra, 163 Cal.App.4th at p. 666.)
              True, Perlin v. Fountain View Management, Inc., supra, 163 Cal.App.4th
657, relied on dicta from a various authorities. Indeed, numerous Elder Abuse Act cases
have arisen in the context where the parties apparently assumed that the statutes created a
cause of action and the reviewing courts addressed not that point, but other Elder Abuse
Act issues as framed by the parties. (See, e.g., Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771; Delaney v. Baker (1999) 20 Cal.4th 23; Intrieri v. Superior Court
(2004) 117 Cal.App.4th 72; Mack v. Soung (2000) 80 Cal.App.4th 966.)
              For example, the court in Delaney v. Baker, supra, 20 Cal.4th 23 made
reference to a Welfare and Institutions Code section 15657 cause of action for “statutory



                                            20
abuse or neglect committed with recklessness, oppression, fraud or malice.” (Id. at p.
41.) It noted that the statute provided for attorney fees and pain and suffering damages
for “reckless neglect.” (Ibid.) The court in Covenant Care, Inc. v. Superior Court, supra,
32 Cal.4th 771 similarly made mention of what it called “statutory causes of action for
elder abuse committed with recklessness, oppression, fraud, or malice (Welf. & Inst.
Code, § 15657).” (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 786.) It
further noted “that statutory elder abuse includes ‘neglect as defined in Section 15610.57’
[citation] . . . .” (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 783.)
Likewise, the court in Intrieri v. Superior Court, supra, 117 Cal.App.4th 72 stated “[t]he
elements of a cause of action under the Elder Abuse Act are statutory . . . . [Citation.]”
(Id. at p. 82.)
                  Dicta aside, we observe that the language of several statutes supports the
view that a complaint framing allegations satisfying the requirements of the Elder Abuse
Act states a cause of action thereunder. As noted previously, Welfare and Institutions
Code section 15657.3, subdivision (d)(1) provides that “after the death of the elder or
dependent adult, the right to commence . . . an action shall pass to the personal
representative of the decedent. . . .” (Italics added.) Furthermore, Welfare and
Institutions Code section 15657.7 provides: “An action for damages pursuant to
Sections 15657.5 and 15657.6 for financial abuse of an elder or dependent adult . . . ,
shall be commenced within four years after the plaintiff discovers or, through the exercise
of reasonable diligence, should have discovered, the facts constituting the financial
abuse.” (Italics added.) Welfare and Institutions Code section 15657.5, subdivisions (a),
(b), (c), and (e) pertain to claims for and liability for “financial abuse . . . as defined in
Section 15610.30.” (Italics added.) Finally, Welfare and Institutions Code section
15600, subdivision (j) provides: “It is the . . . intent of the Legislature in adding Article
8.5 (commencing with Section 15657) to this chapter to enable interested persons to



                                                21
engage attorneys to take up the cause of abused elderly persons and dependent adults.”
(Italics added.)
              In short, we agree with the court in Perlin v. Fountain View Management,
Inc., supra, 163 Cal.App.4th 657, that where a complaint makes allegations satisfying the
requirements of the Elder Abuse Act, it states a cause of action. (Perlin v. Fountain View
Management, Inc., supra, 163 Cal.App.4th at p. 666.) We turn, then to Hector’s assertion
that his complaint did indeed make such allegations.
              (2) Physical elder abuse—
              Welfare and Institutions Code section 15610.63 defines “physical abuse”
as: (a) assault (Pen. Code, § 240); (b) battery (Pen. Code, § 242); (c) assault with a
deadly weapon (Pen. Code, § 245); (d) “[u]nreasonable physical constraint, or prolonged
or continual deprivation of food or water[;]” (e) sexual assault; or (f) “[u]se of a physical
or chemical restraint or psychotropic medication” under specified circumstances.
              As Hector observes, when a doctor performs a procedure without patient
consent, he commits a battery. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324-
325.) Hector argues that when Lourdes, without his consent under the health care power,
directed “hospital staff to remove [decedent] from the ventilator, eliminate his oxygen
support, remove his nutritional tubes, and administer fatal dosages of morphine,” she
directed acts that constituted a battery. He cites Probate Code section 4202, subdivision
(b), which provides: “Authority granted to two or more attorneys-in-fact is exercisable
only by their unanimous action.” Hector argues that because he was a joint attorney-in-
fact and did not give his consent to the administration of fatal doses of morphine, the
drug was administered without consent and thus, a battery was committed against
decedent. He states that, under Ayer v. Robinson (1958) 163 Cal.App.2d 424, 428,
Lourdes was liable for the battery, having directed it to take place. (See also People v.
Beeman (1984) 35 Cal.3d 547.)



                                             22
              Lourdes counters that decedent, in effect, gave his own consent, inasmuch
as his health care power directed medical personnel to withdraw life support under the
circumstances. Indeed, his declaration attached to the health care power states: “If I
should have an incurable and irreversible condition that has been diagnosed by two
physicians and that will result in my death within a relatively short time without the
administration of life-sustaining treatment . . . , and I am no longer able to make decisions
regarding my medical treatment, I direct my attending physician, . . . to withhold or
withdraw treatment, including artificially administered nutrition and hydration, that only
prolongs the process of dying . . . and is not necessary for my comfort or to alleviate
pain.” (Italics added.)
              However, the complaint alleges that decedent did not have an incurable and
irreversible condition. Rather, it alleges that decedent had “overcome his pneumonia,”
showed no signs of infection, and had improved so substantially that hospital staff asked
whether the family wanted to change course and cancel the instruction to remove
intubation and administer fatal doses of morphine. In short, factual issues concerning
consent abound. Consequently, “[i]t is premature to determine the point on appeal[.]”
(Stueve Bros. Farms, LLC v. Berger Kahn, supra, 222 Cal.App.4th at p. 325.)
              (3) Neglect—
              The Welfare and Institutions Code section 15610.57 definition of “neglect”
includes, in subdivision (a)(1), “The negligent failure of any person having the care or
custody of an elder or a dependent adult to exercise that degree of care that a reasonable
person in a like position would exercise.” In her demurrer, Lourdes asserted that the
allegations of the complaint showed that decedent was in the care and custody of the
hospital, not her, and therefore the requirements of the statute were not met. She also
stated that the complaint did not allege that she failed “to exercise that degree of care that
a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57,



                                             23
subd. (a)(1).) Finally, relying on Delaney v. Baker, supra, 20 Cal.4th 23, Lourdes said
the complaint was required to allege that she acted with recklessness, oppression, fraud,
or malice, in order to state a cause of action under Welfare and Institutions Code section
15657 et seq., but that it failed to do so. She renews these arguments on appeal.
              While the complaint recited that decedent was hospitalized at the time of
his death, it alleged that Lourdes utilized a health care power to direct hospital staff with
regard to his care and treatment. It further alleged that Lourdes failed “to exercise that
degree of care which a reasonable person in a like position would have exercised.” It
continued on to state that she “acted recklessly, intentionally, oppressively, fraudulently,
and maliciously . . . with the sole intent of willfully and unlawfully killing [decedent]
with malice aforethought.” It explained that she directed hospital staff to withdraw
ventilation and nutrition and to administer fatal doses of morphine even though decedent
had “overcome his pneumonia” and improved substantially, so substantially that on May
7, 2010, hospital staff pointed out that decedent was better even than the day before and
indicated that perhaps Lourdes would want to wait before making a decision to remove
intubation and administer the morphine. The complaint also alleged that hospital staff
had asked Lourdes about whether Hector, who was joint attorney-in-fact under the health
care power, agreed with her desired course of action and that Lourdes, on more than one
day, including May 7, 2010, misrepresented that he agreed to the termination of
decedent’s life.
              Lourdes insists that members of the hospital staff were “acting within the
scope of their own medical judgment” and would not have terminated life support if it
had not been appropriate to do so. However, the point of the lawsuit is that the members
of the hospital staff did not choose to terminate decedent’s life on their own, but rather,
that Lourdes, armed with the health care power and providing a false representation that
Hector agreed, directed them to do so. Moreover, while one might assume, and indeed



                                              24
hope, that hospital staff would not take the action in question were it not appropriate to
do so, this is not an assumption we make for the purposes of a demurrer. We do not
prejudge the likelihood that a plaintiff will be able to prove the facts alleged. (Alcorn v.
Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496; Aragon-Haas v. Family Security Ins.
Services, Inc. (1991) 231 Cal.App.3d 232, 239.)
              Lourdes warns the court, with respect to both the cause of action for
physical elder abuse and the cause of action for neglect, that the court would proceed
down a very slippery slope if it held that a grief stricken family could be subject to civil
liability for following the recommendation of medical personnel to withdraw life support.
But the allegations here are more than that. The allegations are that defendants
knowingly, and indeed fraudulently, excluded Hector from exercising his right as
attorney-in-fact to advocate for the preservation of decedent’s life, and further, that they
did so in order to pursue their own self interests and seize decedent’s fortune. Finally,
Hector alleges that defendants took these actions in a context where hospital staff
indicated that decedent had improved substantially and perhaps the family should
reconsider the plan to terminate life support.
              (4) Financial elder abuse—
              Welfare and Institutions Code section 15610.30, subdivision (a)(1), (2)
provides that financial abuse occurs when one either takes, or assists another “in taking,
secreting, appropriating, obtaining, or retaining real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both.”
              In his complaint, Hector alleged that, while decedent was in the hospital,
Lourdes, Tania and Victor entered decedent’s home and took certain of his property,
including, among other things, real estate documents, estate planning documents,
financial documents, checkbooks, guns, and cash-on-hand. He stated that the items
wrongfully taken included a $5,000 check, and that they transferred title to decedent’s



                                             25
Mercedes Benz to their mother. In addition, Hector alleged that, in 2008, Lourdes
engaged in a scheme whereby she purchased a piece of San Juan Capistrano real estate
from decedent for $14.5 million, but managed to secretly take back $2 million of the
purchase price without decedent’s consent. He further alleged that, after decedent found
out, he demanded the return of the money, which remained owing at the time of his
death. Purportedly, the paperwork documenting this course of events was among the
documentation defendants stole. That being the case, upon decedent’s death, Lourdes
would get away with keeping the money.
              In her demurrer, Lourdes argued the complaint did not allege that anything
she did caused decedent harm. Rather, she asserted the complaint merely stated that she
took possession of certain records and personal items. She further stated that the
allegations that she “‘took back’ $2 million of the purchase price she paid for” the San
Juan Capistrano property made no sense. She reiterates these arguments on appeal, and
further asserts that the statute of limitations on the purported wrongful taking of $2
million in 2008 had to have run by the time the complaint was filed on December 28,
2012.
              We do not read Welfare and Institutions Code section 15610.30,
subdivision (a) as requiring the plaintiff to specify the exact harm the elder or dependent
adult suffered as a result of the wrongful taking. Furthermore, it is understandable that
Hector was unable to detail the specific mechanism whereby Lourdes allegedly
absconded with decedent’s $2 million, inasmuch as defendants allegedly stole the
paperwork documenting the transaction and the debt. Furthermore, a wrongful taking in
2008 would not necessarily be barred by December 28, 2012. Welfare and Institutions
Code section 15657.7 provides a four-year statute of limitations from the date “the
plaintiff discovers or, through the exercise of reasonable diligence, should have
discovered, the facts constituting the financial abuse.” In any event, to the extent the



                                             26
allegations of the financial elder abuse cause of action were vague, Hector should have
been given an opportunity to amend his complaint.
              (5) Wrongful death—
              In her demurrer, Lourdes stated in a quick two sentences simply that
Hector’s cause of action for wrongful death failed for the same reasons that his other
causes of action failed. In her respondent’s brief on appeal, she provides an equally curt
discussion, in which she states that “consenting to [decedent] being removed from life
support is not a wrongful act.” But it could be on the facts alleged. Moreover, the facts
alleged are that Lourdes did something other than just consent to a course of conduct
desired by hospital staff.
              (6) Conspiracy—
              In his conspiracy cause of action, Hector alleged that defendants conspired
to commit wrongful death, physical elder abuse, and neglect. In her demurrer, Lourdes
correctly pointed out that conspiracy is not a separate tort. “‘Although conspiracy to
commit a tort is not a separate cause of action from the tort itself, alleging a conspiracy
fastens liability on those who agree to the plan to commit the wrong as well as those who
actually carry it out. [Citation.]’” (Stueve Bros. Farms, LLC v. Berger Kahn, supra, 222
Cal.App.4th at p. 323.) While the court could properly sustain a demurrer as to this
particular cause of action, Hector should be given leave to amend as and if necessary to
weave the conspiracy allegations into his other causes of action.


F. Request for Judicial Notice:
              As a final note, Hector has filed a request for judicial notice, in which he
asks this court to take notice of a portion of the transcript of a deposition taken in another
case. The request does not comply with the requirements of California Rules of Court,




                                              27
rule 8.252(a).6 The request is denied. (See Kinney v. Overton (2007) 153 Cal.App.4th
482, 497, fn. 7.)
                                            III
                                     DISPOSITION
              Appellant’s request for judicial notice is denied. The judgment and the
postjudgment order are reversed. Appellant shall recover his costs on appeal.




                                                  MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.




6               As an aside, we observe that Hector is not the only one who has failed to
comply with the California Rules of Court in this appeal. Lourdes’s respondent’s brief is
largely devoid of record references to support her factual assertions. Fully aware of this,
Lourdes acknowledges that her description of the background facts and procedural
history is not supported by record references. However, she says her proffered facts are
simply provided to show the context in which the appeal arises. We admonish counsel
for failing to comply with California Rules of Court, rule 8.204(a)(1)(C) and we
disregard any assertion of fact not supported by the record. (Graham v. Bank of America,
N.A. (2014) 226 Cal.App.4th 594, 611-612.)


                                            28
