It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(2) Defendants' Nurses Notes were charted inaccurately or the nurse completely failed to perform any charting whatsoever (both serious breaches of the applicable regulations since the absence of any charting is absolute and unequivocal evidence of neglect) (FAC, para. 29);

(3) Defendants' failed to order a speech therapist or speech language pathologist evaluation (an intentional violation of the regulations) for Abbey on or about April 8, 2008, when they knew that she was not swallowing and had lost considerable weight (inability to swallow and substantial weight loss are both changes of condition, both of which required notification to Abbey's family and physician so that these issues could be addressed) (FAC, para. 31); also, a nursing facility must ensure that a resident receives prescribed therapies, including physical therapy, occupational therapy, and speech therapy. 42 CFR § 483.45; For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(4) Abbey's inability to swallow and/or her delayed swallowing should have been critically important warning signs of dehydration, which Defendants recklessly ignored causing her swallowing problems to worsen (FAC, para. 32);

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The Elder Abuse Cause of Action in Plaintiffs' FAC is Well Pled

In their Demurrer, Defendants haphazardly assert that Plaintiffs claim for elder abuse simply fails to plead facts sufficient to constitute a viable claim. However, in asserting this baseless accusation, Defendants ignore the 30-plus paragraphs of detailed factual allegations which make up the factual basis for Plaintiffs' elder abuse cause of action. In fact, Plaintiffs' FAC provides Defendants with more detail than is required by the code. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The issue here is whether or not Plaintiffs have provided Defendants with sufficient facts such that Defendants are apprised of the basis upon which Plaintiff are seeking recovery. Clearly, Plaintiffs have provided Defendants with more than a sufficient factual basis of the claims against them, including a clear picture of the multiple acts and omissions by Defendants constituting elder abuse. Specifically, Plaintiffs have alleged copious facts in their FAC that clearly elucidate specifically how Defendants' recklessly neglected Abbey and how they caused her senseless death, including but not limited to all of the following:

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

"Recklessness" Under the Elder Abuse Act

Once neglect is satisfactorily pled, the next question become whether Plaintiff has pled factual allegations that support a claim that the alleged neglect amounted to recklessness (i.e., a conscious disregard of rights or safety), oppression, fraud, or malice, which would then entitle Plaintiffs to the heightened remedies available under the Elder Abuse Act. Defendants claim that Plaintiffs have not pled sufficient facts showing intentional conduct. (Demurrer, 6:24 - 26.) However, a showing of intentional conduct is not required to state a claim for elder abuse. The term recklessness, which can be a species or quality of negligence, is not an intentional tort. California Elder Law Litigation: An Advocate's Guide, § 2.44. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Delaney v Baker (1999) 20 Cal.4th 23, 31, the California Supreme Court explained that recklessness under the Elder Abuse Act refers to a subjective state of culpability greater than simple negligence, which has been described as deliberate disregard of the high degree of probability that an injury will occur [citing BAJI 12.77 (defining recklessness in the context of an intentional infliction of emotional distress action)]. (See California Elder Law Litigation: An Advocate's Guide, § 2.44.) For purposes of the Elder Abuse Act, California Civil Jury Instruction ( CACI ) 3113 has adopted that standard, stating that a defendant acts with recklessness if he or she knew it was highly probable that [his or her] conduct would cause harm and [he or she] knowingly disregarded this risk, and that recklessness is more than just the failure to use reasonable care. Id.

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Under the Elder Abuse Act, "Neglect" Constitutes Abuse of an Elder

The purpose Welfare and Institutions Code Section 15610.07 (which is part of the broader legislation commonly referred to as "the Elder Abuse Act” aka “EADACPA") is essentially to protect the elderly, a particularly vulnerable portion of our society, from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker (1999) 20 Cal.4th 23, 33. The Elder Abuse Act provides that "[a]buse of an elder" means either: (a) Physical abuse, neglect, ... abandonment, ... or other treatment with resulting physical harm or pain or mental suffering; or (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

"Neglect" is Broadly Defined in the Elder Abuse Act

The statutory definition of neglect is set forth in Section 15610.57(b) of the Elder Abuse Act, which provides that [n]eglect includes, but is not limited to, all the following: (1) failure to assist in personal hygiene or in the provision of food, clothing, or shelter; (2) failure to provide medical care for physical and mental health needs; failure to protect from health and safety hazards; or (3) failure to prevent malnutrition or dehydration, (Emphasis added.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The pleading requirements for elder abuse actions was addressed in the leading treatise on elder abuse, California Elder Law Litigation: An Advocate's Guide, § 6.40:
[t]o survive a challenge by a defendant, the plaintiff's complaint must be pleaded with sufficient clarity to provide the defendant with clear notice of the plaintiff's claim. The facts of the defendant's conduct as pleaded must meet the requirements in CC § 3294.

To determine whether the facts as pleaded in an elder abuse complaint describing the defendant's conduct satisfy the minimum statutory requirements of malice, oppression, or fraud, a Court must read the challenged allegations within the context of other facts alleged in the complaint. Even when a complaint pleads ultimate facts or conclusions of law, if it also contains specific allegations of acts attributed to the defendant showing the requisite evil motive, the complaint may survive a demurrer or motion to strike. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Accordingly, what is required by California law for a civil complaint is a statement of the facts pled with sufficient clarity so as to provide Defendant with clear notice of Plaintiffs' elder abuse/neglect cause of action, in ordinary and concise language. Plaintiffs' FAC clearly satisfies the above-mentioned requirements.

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

DISCUSSION

The Legal Standard on Demurrer

A demurrer tests the sufficiency of the pleadings, the allegations of which must be accepted as true by the court for purposes of review. Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231. [I]t is error for a court to sustain a demurrer where the allegations adequately state a cause of action under any legal theory. (Ibid.) The complaint in a civil action serves a variety of purposes, including to frame and limit the issues and to apprise the defendant of the basis upon which the plaintiff is seeking recovery. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view to substantial justice between the parties. Code of Civil Procedure § 452; Cameron v. Wernick (1967) 251 Cal.App.2d 890. A demurrer will not be sustained unless the complaint, liberally construed, fails to state a claim on any theory. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.

The Legal Standard for Pleadings in Elder Abuse/Neglect Cases

The applicable code section pertaining to the pleading requirements for civil actions is Section 425.10, which provides:

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Plaintiffs' Abbey White, Olivia Lee, and Owen White's Opposition to Universal Care of Sacramento and Aging Care’s Demurrer to Plaintiffs' First Amended Complaint

Plaintiffs Abbey White ("Decedent" or "Abbey"), by and through her successor-in-interest Olivia Lee, Decedent's daughter Olivia Lee, and Decedent's son Owen White (collectively "Plaintiffs"), respectfully submit the following opposition to defendants Universal Care and Aging Care’s (collectively "Defendants") Demurrer to Plaintiffs' First Amended Complaint ("FAC").

INTRODUCTION

Defendants' contend in their demurrer that the first four causes of action of Plaintiffs' FAC [i.e., Elder Abuse; Violation of Patients Bill of Rights; Concealment; and Negligent Infliction of Emotional Distress ("NIED")] fail to state sufficient facts and/or is otherwise uncertain. However, Defendants' contention is entirely without merit as the FAC contains some 27 paragraphs of detailed factual allegations which clearly apprise Defendants of the claims against them, as required by the Code of Civil Procedure. In fact, the factual allegations contained in the FAC go much further than simply appraising defendants of the claims against them, they actually set forth in detail the multiple acts and omissions which comprise the reckless neglect. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In fact, in paragraphs 24 through 50, Plaintiffs alleged, in considerable detail, the key factual allegations that clearly demonstrate that Defendants' reckless neglect of Abbey resulted in her senseless death.

.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

ONLY RELEVANT EVIDENCE IS ADMISSIBLE FOR ANY PURPOSE.

For all of the above reasons, such testimony and evidence is also irrelevant. Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact that is of consequence to determination of the action. (Evidence Code §§210, 780, 1202.) No evidence is admissible except relevant evidence. (Evidence Code §350.) Testimony about these supposed standards and practices for police accident-reporting have no application to determine if the subject accidents in this matter are a singular event or multiple events. These standards merely serve to provide guidelines to officers in their report writing duties. These standards were not developed for the purpose that plaintiff and his expert proposed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

POLICE ACCIDENT REPORTING STANDARDS ARE AN ISSUE OF LAW AND INTRODUCTION OF SUCH EVIDENCE IS UNDULY PREJUDICIAL

An experts testimony on an issue of law is not admissible, including an application of law to facts. The experts testimony on these matter usurps the judges and jurys responsibilities. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155 (expert opinion on the legal question of duty was not admissible.)

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

This case arises from two consecutive accidents involving the same bus, one at the intersection of Seminary and International involving the Universal vehicle, and one half a block away where the bus was driven into several residences across the street. Setting aside the issue of relative liability on the part of both drivers, the fact that only one police report was generated for both accidents is not probative of whether one or more accidents occurred. It is determinative that there was a relationship between the two accidents, as they both involved the same bus and that they were consecutive in time. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Evidence Code section 352 gives the court discretion to exclude evidence if its admission will necessitate the undue consumption of time, or if its probative value is substantially outweighed by a substantial danger of undue prejudice, confusion of issues and misleading the jury. (Evidence Code §352.) Defendants respectfully request that any evidence of or reference to police accident report writing standards as determinative of the status of the accident as a singular event is only intended to mislead and prejudice the jury, and should thus be prohibited from mention.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

THE TRIAL COURT POSSESSES THE INHERENT POWER TO GRANT MOTIONS IN LIMINE AND SUCH MOTIONS ARE A WELL ESTABLISHED METHOD OF EXCLUDING INADMISSIBLE EVIDENCE

Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.

A MOTION IN LIMINE MAY BE USED TO EXCLUDE ANY EVIDENCE TO WHICH COUNSEL COULD OBJECT AT TRIAL IS IRRELEVANT OR IS SUBJECT TO THIS DISCRETIONARY EXCLUSION BECAUSE OF ITS UNDULY PREJUDICIAL EFFECT

Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.

THE COURT SHOULD EXCLUDE EVIDENCE THE PROBATIVE VALUE OF WHICH IS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICIAL IMPACT OR HAS THE RISK OF MISLEADING OR CONFUSING THE JURY

Pursuant to Evidence Code section 352, the Court should weigh the probative value of proffered evidence against the probability that it will create a substantial danger of undue prejudice. (People v. Murphy (1979) 8 Cal.3d 359.) If the Court finds that the probative value of the proffered evidence is weak and a danger of undue prejudice is strong, then it should rule that such evidence is inadmissible. (People v. Stanley (1967) 167 Cal.2d 812.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Defendants Clive White and Universal Rental Car’s Motion in Limine to Exclude Reference to Police Accident Report Writing Standards

Defendants Clive White and Universal Rental Car hereby move this court, in limine, before jury selection at the trials commencement for an order instructing plaintiff, his counsel, and each and every one of plaintiffs witnesses, not to mention, interrogate on, or in any other manner, convey to the jury whether during voir dire, opening statement, testimony, final argument, or otherwise, any reference to or evidence of police accident report writing standards as evidence that the two consecutive bus accidents that are the subject of this litigation actually constituted a single event.

It is anticipated that plaintiff and his experts will reference police accident report writing standards as evidence for his contention that the bus accident at the intersection of Seminary and International involving defendants vehicle and the following bus accident half a block away in which the bus ran into residences across the street, were a single event caused exclusively by defendant Williams. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

One of plaintiffs accident reconstruction experts referenced CHP accident reporting standards to support his opinion that these bus accidents constitute a single event. Defendant contends that these were two separate accidents albeit they were consecutive and that they both involved the same bus.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/bus accident case and its proceedings.)

Plaintiff's own medical expert, Dr. Levine, testified that the basis for his opinion (of injury) was only as good as the facts upon which they were based, i.e. the history and reports provided by plaintiff. As indicated above, plaintiff's reporting was replete with distortions and omissions, including but not limited to her failure to reveal to Dr. Levine a subsequent trip and fall for which she sought treatment with a chiropractor for four months. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Finally, plaintiff walked with a prominent limp in front of the jury at all times during the six-day trial. She testified that her limp was always present, both in and out of the courtroom. She was then directly impeached with videotape, shown to the jury, depicting her walking freely and uninhibited, without a cane, just days before the trial commenced. Even without all the additional evidence as discussed above, the video evidence alone was a sufficient basis on which to conclude that plaintiff was not credible and was not truthful in claiming injury in this case.

After hearing all evidence discussed above, the jury held that plaintiff had sustained no injury as a result of the negligence of defendants. California law requires that, in order to grant a judgment notwithstanding the verdict, there must be "no evidence of sufficient substantiality to support a verdict" rendered by the jury.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/bus accident case and its proceedings.)

Plaintiff still claims, in current moving papers, that her bus was "rammed" by defendant's vehicle. In sharp contrast, the jury was shown photographs, copies of which are attached, which clearly reflect that defendant's vehicle merely scraped along the left front cover of the bus. Further evidence established that no hidden or structural damage occurred to the bus. Damage to defendant's van was minor, estimated at approximately $100. Common sense and inferences drawn from such evidence allowed the jury to conclude that no injury would result from the impact.

Defendant called Dr. Edward Stein, a physicist, to reinforce the unlikelihood of injury. Dr. Stein convincingly and completely refuted plaintiff's claim of injury. He testified as to the force of the collision, and explained to the jury that plaintiff would have experienced a vibration in her seat inside the 40-foot bus due to contact from defendant's vehicle. Similarly, Officer Brown testified that plaintiff may have been jostled by the contact between vehicles, but that he did not believe that plaintiff could have been injured.

Medical evidence established that plaintiff originally complained of minor contusion type injuries immediately following the accident. By the time of trial, plaintiff's claims had expanded to include significant problems in her neck, low back, left hip, left buttocks, left thigh, left shin, left foot, left shoulder, headaches, and post traumatic stress disorder. Medical records prepared by plaintiff's own providers note that plaintiff was an unreliable reporter, and prone to misrepresentation, exaggeration, and inconsistent reporting of symptoms. Plaintiff's gross overreaching was made clear in evidence to the jury and undoubtedly contributed to erosion of plaintiff's credibility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/bus accident case and its proceedings.)

LEGAL ARGUMENT

EVIDENCE AT TRIAL SUPPORTS THE JURY'S VERDICT AND DOES NOT MEET THE STANDARD FOR JUDGMENT NOTWITHSTANDING THE VERDICT AS SOUGHT BY PLAINTIFF.

California Code of Civil Procedure § 629 allows for a motion for a judgment notwithstanding the verdict and provides that the court "shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made." For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In considering such motions, California Courts uniformly hold that such motions shall be granted only when there is no evidence of sufficient substantiality to support the verdict rendered. In Newing v. Cheatham (1975) 124 C.R. 193, the court held as follows:

A directed verdict may be granted, when, disregarding conflicting evidence, and indulging every legitimate inference which may be drawn from the evidence in fayor of the party against whom the verdict is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of such party, if such a verdict has been rendered. 124 C.R. at 198.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/bus accident case and its proceedings.)

At trial, plaintiff proved herself to be a poor historian who could not get her facts straight. She could not remember details of a slip-and-fall in a liquor store after the bus accident. She testified that she made no claim for the subsequent injury, but documents produced at trial proved that a claim was made against Hartford Insurance Company. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff exhibited a prominent limp during trial and used a cane at all times in the presence of the jury. She testified that she was unable to walk without a cane and that her limp was always present, in and out of the courtroom. However, four days of surveillance videotape of plaintiff taken immediately before trial began showed plaintiff walking without a limp and without a cane 3 of the 4 days. The only time plaintiff walked with a cane on the videotape was as she was coming out of her lawyer's office on the day prior to trial.

The jury was interviewed post-verdict by both plaintiff and defense counsel. Plaintiff's counsel asked a group of jurors why they ruled that plaintiff was not injured in the accident. One of the jurors responded, observation.”