d. The Doctors Are Accused by Sufficiently Allegations of Reckless Neglect Under the Elder Abuse Act.

To establish elder abuse a plaintiff must show a defendant was guilty of recklessness, among other possibilities. [Benun v. Sup.Ct. (Country Villa East)] (2004) 123 Cal. App. 4th 113, 120] Then the controlling statute of limitations is for personal injury, hence two years. [Ibid]

The Second Cause of Action states that the doctors were reckless and showed a deliberate disregard of a high probability that injury would occur. That is recklessness. [Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1019 (citing other cases)]
In 1991, in order to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults (Welf. & Inst. Code, § 15600, subd. (j)), the Legislature added Welfare and Institutions Code section 15657 to the Act.

That section makes available, to plaintiffs who prove especially egregious elder abuse to a high standard, certain remedies in addition to all other remedies otherwise provided by law (Welf. & Inst. Code, § 15657). [1] Specifically, a plaintiff who proves by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or financial abuse (as these terms are defined in the Act), and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of such abuse, may recover attorney fees and costs. (Id., subd. (a), incorporating by reference Welf. & Inst. Code, §§ 15610.30, 15610.57, 15610.63.)
Covenant Care, Inc. v. Superior Court (Inclan) (2004) 32 Cal.4th 771, 779-780.

Tina Steinford, a distraught daughter of Paul Steinford, decided that her father should not have suffered and died but only could guess why. She did not have any material facts; did not have any medical records until April 2007; could not afford hiring a qualified doctor to investigate; and has no training in medicine or nursing. Her father was 84 years old, so a reasonable person does not normally suspect wrong doing or premature death.

She did not know and the medical records did not disclose the known side effects of the psychotropic drugs administered. Rather, those records refer to failures of the respiratory system, failure of the kidneys, sepsis and, unltimately, heart failure. Upset and too poor to pay for professionals, she continuously sought help but did not find it until after she contacted the Citizens Commission on Human Rights. A referral from that group to this counsel lead to the prompt involvement of a doctor that understands that psychotropic drugs poison older people. That immediately lead to the filing of this lawsuit.

The history of the delayed discovery rule preceding the passage of me three year outer limit in 1975 evidenced the possibility that the commencement of the running of the statute might be deferred indefinitely. [Brown v. Bleiberg (1982) 32 Cal. 3d 426, 432] And so in the Brown case a woman that had a foot surgery for corns sued her doctor twelve years later because unknown to her he removed bones.

Toyota's president emerged from seclusion Friday to apologize and address criticism that the automaker mishandled a crisis over sticking gas pedals. Yet he stopped short of ordering a recall for the company's iconic Prius hybrid for braking problems.

Akio Toyoda, appointed to the top job at Toyota Motor Corp. last June, promised to beef up quality control, saying, "We are facing a crisis."

Toyoda, grandson of the company's founder, said he personally would head a special committee to review checks within the company, go over consumer complaints and listen to outside experts to come up with a fix.

"I apologize from the bottom of my heart for all the concern that we have given to so many customers," said Toyoda, speaking at his first news conference since the Jan. 21 global recall of 4.5 million vehicles.

Finally, in 2007, after searching diligently to find help to review the suspected claim, Ms. Steinford found her present counsel who agreed to review the matter, and upon reading the records helped retain a competent physician who expeditiously reviewed the records, an opinion was rendered of negligence such that current counsel could on May 2, 2007, for the first time properly issue notices pursuant to Code of Civil Procedure section 364.

Prior to the actions undertaken by current counsel Ms. Steinford did not have knowledge about the negligent causation ofher father's death sufficient to bring an action sounding in medical negligence or elder abuse. Based upon these facts the statute of limitations for both medical negligence and elder abuse based upon medical negligence should be equitably tolled to allow this action to proceed or in the alternative the defendants should be equitably estopped from asserting the statute of limitations because of the false explanation of the course of death.

In addition to these facts alleged to show diligent pursuit of the factual basis to bring a claim, in this brief the plaintiffs also say:

This case is about the poisoning of Paul Steinford by means of multiple psycho tropic drugs that should never have been used but certainly should have been stopped when the symptoms started that lead to his death. Many of those symptoms are disclosed by the drug companies as side effects of the psycho tropic drugs. All of the treating doctors should have known that the drugs had those known side effects that included symptoms that Mr. Steinford exhibited to them including difficulty swallowing and toxicity.

The legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause. (See, e.g., Code Civ. Proc, §§ 340.1, subd. (a) [ within three years of the date the plaintiff discovers or reasonably should have discovered ], 340.15, subd. (a)(2) [ [w]ithin three years from the date the plaintiff discovers or reasonably should have discovered ], 340.2, subd. (a)(2) [ [w]ithin one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known ], 340.5 [ one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered ].)

This policy of charging plaintiffs with presumptive knowledge of the wrongful cause of an injury is consistent with our general policy encouraging plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395.)

Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury.

The Complaint Properly Explains the Basis for Tolling (Due to Delayed Discovery) and Should be Allowed to Proceed.

The delayed discovery rule allows a plaintiff to bring a claim beyond the one year limitation period for medical malpractice if the criteria is met. The issue in this case is whether a plaintiff who does not have a reasonable basis for suing within one year and is trying diligently to determine the facts is precluded from suing later when the facts are discovered within the outer three year limit. The case law says that the plaintiffs can proceed.

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc, § 312 [ Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued ]; Norgart, supra, 21 Cal.4th at p. 397.) In other words, statutes of limitation do not begin to run until a cause of action accrues. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487;
Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806.)

The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have "information of circumstances to put [them] on inquiry" or "if they have" the opportunity to obtain knowledge from sources open to [their] investigation.

The Pleadings.

The Judicial Council complaint states that Tina Steinford and the Estate of Paul Steinford complain that eleven doctors and two institutions negligently caused the death of Paul Steinford and committed elderabuse. Since the filing of the complaint Universal Hospital and Camino Towers have been dismissed from the case, along with doctors Washington, Greene, and Black.

The thrust of the negligence claim is that Mr. Steinford was negligently prescribed anti-psychotic medications without his consent.

The Plaintiffs explain why the complaint was filed July 31, 2007, more than one year following the death of Mr. Steinford on May 5, 2005. It is important for the court to appreciate that the black box warning on Risperidone (Risperdal) refers to the dangers of strokes in elderly people. Mr. Steinford did not die from a stroke. So it is evident that Ms. Steinford was guessing and grasping at straws until she found present counsel and a qualified phsician to review the records and advance the theories announced.

The Legal Argument.

a. A Demurrer Examines the Pleading to Determine Its Legal Sufficiency.

On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

OPPOSITION TO DEMURRER

The plaintiffs oppose the demurrer brought by defendant doctors White, Black, Greene, Brown, Smith, and James, because the plaintiffs have set out a reason why the statute of limitations was extended beyond one year and for the time it took to file the action and that the elements of a claim for elder abuse are stated. Moreover, if the court finds any deficiencies with the complaint, the plaintiffs seek leave to amend consistent with the statements made about their claims.

MEMORANDUM OF LAW

Overview of the Case.

This case is about the poisoning of Paul Steinford by means of multiple psycho tropic drugs that should never have been used but certainly should have been stopped when the symptoms started that lead to his death. Many of those symptoms are disclosed by the drug companies as side effects of the psycho tropic drugs. All of the treating doctors should have known that the drugs had those known side effects that included symptoms that Mr. Steinford exhibited to them including difficulty swallowing and toxicity. Dr. Washington arrived on April 26, 2005, just before Mr. Steinford's untimely death, and removed him from the psycho tropic drugs, regrettably too late to reverse the effects of those drugs and save his life.

Dr. Washington is dismissed from this lawsuit and deeply thanked for his correct actions obviously reflecting knowledge and caring. We apologize for including him. The fact of his removing Mr. Steinford from the harmful drugs was just discovered. All doctors arriving on or after April 26, 2005 have been dismissed.

Here, Defendant has failed to establish by any means how the "sub rosa" videotape contradicts or somehow discredits the testimony of any of Plaintiffs experts based on any legal criteria. Defendants have not explained if or how these experts failed to rely on personal observation, personal knowledge, or an assumption of facts finding support in the evidence. As is obvious, the "sub rosa" video was not the only evidence available to the jury, nor can an assumption be made that Plaintiffs experts opinions would have been altered in any way based on a video depicting activities Ms. Lee's own family testified. that she on occasion was able to participated in and/or perform.

Further, Defendant's reliance on two family law cases, related to asset value disputes is markedly distinguishable from a civil matter wherein medical experts base their opinions on examination of a Plaintiff and provide an opinion based on their background, expertise and experience, as was the case here. Further, Defendants have relied on court opinions regarding expert valuations of tangible assets, which is markedly divergent from the valuation of a person's future needs of a medical nature, as explained.

The Evidence Presented in the Trial Constitutes Significant Evidence

During the course of this trial, there was significant evidence with regard to the brain injury, and other physical injuries, suffered by Ella Lee. Every medical expert, Plaintiff or Defense, agreed that she did indeed suffer a brain injury. Further, the testimony of Plaintiffs experts and Defendant's experts as to the extent of Ms. Lee's injuries was not identical, but that is surely to be expected. The mere fact that there was contradicting expert opinion evidence does not diminish the solid value of the evidence presented.

Defendant's Analogy Can Be Readily Distinguished From This Brain Injury Case

Defendant provides an example by way of reference to In re Marriage of Hewitson and In re Marriage of Rives as support for the proposition that Plaintiffs experts' testimony does not constitute substantial evidence. (Def. Mot., citing Hewitson (1983) 142 Cal.App.3d 874; citing Rives (1982) 130 Cal.App.3d 138)).

Defendant cites these two cases, which are a family law cases stemming from dissolution of marriage, for the proposition that an expert's testimony based on "improper" or "unwarranted" matters means the opinion is not supported by substantial evidence. Defendant fails to identify the Hewitson or Rives Court's reasoning for such a proposition.

In Hewitson, similarly to Rives, the court concluded that the trial court's determination of the value of a particular asset [closely held corporation] is a factual one and, if there is substantial evidence to support it in the record, the determination must be upheld on appeal. Hewitson, 142 Cal.App.3d at 885. The court continued its explanation by stating that if such determination is based solely or in large part on the opinion of an expert, the determination will not be upheld on appeal, unless the opinion satisfies the standard of admissibility set forth in Evidence Code section 801. Id. (citing In re Marriage of Rives (1982) 130 Cal.App.3d 138, 149-151; cf.. Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382, 389-390).

As to Defendant's seven purported "false assumptions" that supposedly make the evidence presented in this traumatic brain injury case "insignificant," the Plaintiff would respond as follows:

Not one of Plaintiff's witnesses knew of the existence of the sub rosa video prior to their testimony. Despite Defendant's contention that the "sub rosa" contradicts the weight of the evidence, Plaintiffs family testified 1) that plaintiff was able to leave the house by herself on occasion and in fact had confusedly wandered in the neighborhood on occasion; 2) that plaintiff was able to dress herself on occasion, but more frequently than not needs assistance; 3) that plaintiff could move her arm somewhat, and that her movement and rotation in her left arm had reduced over recent months; 4) that plaintiff required supervision and was not the same since the collision and that the family tries to watch her as much as they can; 5) that plaintiff could walk unassisted on occasion, having good days and bad days.

Further, Plaintiffs experts testified that Plaintiff's future care needs would range from a level 2 to level 3 environment, which is contrary to Defendant's moving papers that suggest all evidence proffered by plaintiff suggested she would need no less than "24 hours a day, every day" care post-auto accident. Further, Plaintiffs expert Patti Green testified that Ms. Lee future surgical needs were suggested, but yet unknown pending further testing.

THE VERDICT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE

Defendant contends that a miscarriage of justice will be had in this case if the verdict stands and further contends that the verdict is not based upon substantial evidence of plaintiff's brain injury. Defendant's Contention is plainly wrong. First, Defendant does not challenge the finding of liability in this matter and is thus not entitled to a JNOV in that regard.

Further, Defendant suggests that because Plaintiff's experts were not aware of the sub rosa videotape at the time of their testimony, that the opinions of Plaintiff's experts are erroneous. In this way, Defendant suggests that the "sub rosa" videotape simply wipes away any and all evidence of injuries to Plaintiff Ella Lee. However, plaintiff presented evidence that was sufficient to "reasonably inspire confidence," and support the verdict; as such, defendant is not entitled to a JNOV as to the damage award and Defendant's Motion should be denied in its entirety.

Defendant Erroneously Contends that Plaintiffs Experts Relied on False Assumptions

Defendant argues that Plaintiffs experts relied on false assumptions, including 1) that plaintiff was unable to leave the house by herself; 2) that plaintiff was unable to dress herself; 3) that plaintiff could not move her arm and needed shoulder surgery; 4)that plaintiff required 24 hour supervision; 5) that plaintiff could not walk unassisted; 6) that plaintiff would not be allowed to smoke; and 7) that plaintiff could not conduct a transaction by herself. Defendant suggests that the "sub rosa" video contradicts all of these alleged false assumptions.

Further, a judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law. Moore v. San Francisco (1970) 5 Cal. App. 3d 728, 733-734 (referencing Palmer v. Agid (1959) 171 Cal.App.2d 271). A JNOV motion must be denied if substantial evidence "supports the verdict." Begnal v. Canfield Assocs., Inc. (2000) 78 Cal.App.4th 66; Campbell v. Cal-Gard Surety Svs., Inc. (1998) Cal.App.4th 563; Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal. App. 4th 206, 218.

In the instant case, defendant erroneously argues that a miscarriage of justice has occurred in this brain injury case, without any adequate justification. Defendant suggests that no evidence was presented that would be of "solid value" or that would "reasonably inspire confidence" to support the verdict; however, this contention is unsupported and misleading.

In fact, defendant provides no valid argument to support this conclusion and instead urges this Court to weigh the evidence and make credibility determinations regarding specific witnesses, which is improper. As such, Plaintiffs respectfully request this Court to deny Defendant's motion for judgment notwithstanding the verdict.

STANDARD FOR A JUDGMENT NOTWITHSTADING THE VERDICT

A Judgment Notwithstanding the Verdict (hereinafter "JNOV") challenges the legal sufficiency of the evidence, essentially asking whether the evidence was sufficient to prove the claims or defenses asserted and now embodied in the jury's verdict, such as the one in this brain injury case. See Hauter v. Zogarts (1975) 14 Cal.3d 104; Clemmer v. Harford Ins. Co. (1978) 22 Cal.3d 865.

For purposes of a JNOV, all evidence supporting the verdict is presumed true, making the issue whether the facts, when presumed true, constitute a prima facie case or defense as a matter of law. Moore v. San Francisco (1970) 5 Cal.App.3d 728; Fountain Valley Chateau Blanc Homeowner's Ass'n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743.

The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. The trial judge cannot weigh the evidence, or judge the credibility of witnesses. If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.

Prior to this catastrophic car crash, Ella Lee, a mother and grandmother, had a functional life filled with the typical array of ups and downs. Testimony was given that prior to this collision, Ms. Lee took care of her parents, enjoyed friends, and had relatively good health. She did have anxiety problems and according to the experts, had mental illness in the form of schizophrenia. But she was functional and lived independently. Now, she needs help with most basic daily tasks and requires supervision.

When she left the nationally renowned rehabilitation center in Sacramento, California, Universal Rehabilitation, she had regained many life survival skills to re-integrate into her world with the help of others, but she still was a danger to herself and others, easily confused, easily tired, and in chronic pain from the traumatic brain injury. She requires assistance from skilled nurses.

Sandra Lee has been fully evaluated by many top experts, including Physiatrist Bob Smith, M.D., Neuropsychologist Jeffery Brown, Ph.D., Neuropsychiatrist Lester Davis, M.D., and has had a comprehensive Life Care Plan put together with the help of these experts by Patti Green, a highly respected life care planner. Plaintiffs experts testified that Ella Lee's future medical care costs totaled $8,636,251.00 and that Ms. Lee's past medical expenses totaled $426,636.00.

In their case in chief, the City of Sacramento presented testimony of their medical experts, Julie Noonan, M.D, Robert Estes, M.D., and Frank Rubin, M.D. The City's accident reconstructionist, Stan Evans, also testified.