DeVone v. Morgan Stanley & Co. LLC

Filed 10/8/26; Certified for Publication 10/29/26 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE ADAM DEVONE et al., B339219 Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. 19STCV14477) v. MORGAN STANLEY & CO. LLC et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Kevin C. Brazile, Judge. Reversed in part, affirmed in part, and remanded with directions. Reif Law Group, Brandon S. Reif and Marc S. Ehrlich, for Plaintiffs and Appellants. Venable and John S. Worden, for Defendants and Respondents. _________________________ 1  Maurice Voce was a barber by trade and a self-taught investor. From the 1980s until his death in 2012 at the age of 93, he traded stock options with Morgan Stanley & Co., LLC, primarily through John R. Privitelli, and built a $19 million fortune. Maurice left that fortune to his three children—Mario Voce, Julia Voce, and Stella Voce—through a series of trust instruments.1 Stella served as sole trustee of the Trusts from approximately October 2007 until Mario, Julia, and Adam DeVone—Maurice’s nephew—were added as co-trustees in March 2012. Beginning around 2010, Maurice’s children and other family members grew concerned about his declining cognitive health, even as some of the options trading, and the commissions it generated, continued. DeVone, Mario, and Julia, as co-trustees of the Trusts, and DeVone, as personal representative of Maurice’s estate, sued Morgan Stanley and Privitelli for breach of fiduciary duty and financial elder abuse arising from Maurice’s decades-long relationship trading options with Privitelli. After the close of plaintiffs’ evidence, the trial court granted defendants’ motion for nonsuit and entered judgment on both causes of action. Plaintiffs appeal from the judgment. Plaintiffs challenge three rulings underlying the judgment. First, they argue the trial court misapplied the statute of limitations. Although the court found plaintiffs’ claims timely under the discovery rule, with months of the limitations period still unexpired, plaintiffs contend the court erroneously treated 1 To avoid confusion we refer to Maurice and the Voce children by their first names. The trusts are the Voce Family Trust, the Voce Residuary Trust, and the Restated Voce Marital Trust. We refer to them collectively as the “Trusts.” 2 the limitations period as an eroding damages window, projecting the unexpired balance backward from the date of accrual and excluding, as a matter of law, any conduct predating that window. Second, they contend the trial court erred in granting nonsuit on their financial elder abuse claim. They argue the evidence was sufficient to support a finding that defendants knew or should have known that continuing to facilitate Maurice’s options trading was likely to harm him given his age and declining cognitive health, regardless of whether his accounts ultimately increased in value. Third, plaintiffs contend the trial court erred in granting nonsuit on their breach of fiduciary duty claim. They principally argue the order rested on the court’s erroneous determination that defendants’ fiduciary duty did not extend to tax and estate-planning advice that Privitelli allegedly gave Maurice, because defendants were neither hired nor paid to give such advice. We agree the trial court misapplied the statute of limitations, and that plaintiffs’ evidence was sufficient to survive nonsuit on the elder abuse claim and breach of fiduciary duty claim to the extent the latter was based on the court’s determination of the scope of defendants’ fiduciary duty. However, we conclude the court properly granted nonsuit as to the distinct theory that defendants breached their fiduciary duty through excessive trading of Maurice’s accounts, as plaintiffs failed to offer expert evidence sufficient to support that theory. Accordingly, we affirm the judgment in part, reverse it in part, and remand for further proceedings consistent with this opinion. 3  BACKGROUND A. Maurice’s History Trading Options with Morgan Stanley and Privitelli Maurice began investing in the 1960s and trading options in the 1970s.2 In the 1980s he worked with Joseph Privitelli, a financial advisor then with Dean Witter Reynolds, which later merged with Morgan Stanley. When Joseph died in 1993, his son, John Privitelli, took over Maurice’s investment accounts. Maurice was 74 years old at the time. Privitelli worked with Maurice continuously until June 2012, when Morgan Stanley began the process of terminating its business with the Trusts due to a dispute among the co-trustees. Maurice died in August 2012, 2 An option is a contract giving its holder the right, but not the obligation, to buy (a “call”) or sell (a “put”) a security at a specified price (the “strike price”) within a specified period. Options contracts can either be “covered” or “uncovered.” For example, in a “covered call,” the option seller already owns the underlying stock and sells a call against it—if the stock rises above the strike price, the seller is obligated to sell the shares at that price, but because the seller holds the shares, the loss (if any) associated with the transaction is limited to the difference between the original purchase price of the shares and the strike price for the covered call. An “uncovered” or “naked” option, by contrast, is sold without any offsetting position in the underlying security. A seller of a naked put, for example, profits so long as the underlying security does not decline sharply, but if it does, the seller may be obligated to purchase the stock at the strike price notwithstanding a substantial decline in the stock’s actual value—a loss bounded only by the fact that the underlying security’s price cannot fall below zero. Because a naked option seller holds no offsetting position, this risk is not limited in the way the risk on a covered position is. 4 at the age of 93, leaving an estate that included Morgan Stanley accounts then worth approximately $18 million. Maurice and the Trusts had two primary accounts with Morgan Stanley: an account containing municipal bonds and other income-focused investments (the “649 Account”), and a trading account in which Privitelli deployed a strategy of buying and selling stock options, including covered calls and uncovered puts (the “850 Account”). (See fn. 2, ante.) B. The FINRA Arbitration On June 15, 2014, plaintiffs filed a statement of claim against Morgan Stanley with the Financial Industry Regulatory Authority (“FINRA”), invoking a binding arbitration agreement and alleging breach of fiduciary duty and financial elder abuse. They amended the claim in January 2017, adding four additional counts of fraud. Plaintiffs alleged Morgan Stanley constructed “highly unsuitable portfolios for Maurice” during “the final phase of his life,” including an options trading strategy that, “in addition to being too risky and clearly unsuitable for the 90+ year old Maurice and his trust,” at times involved “repurchasing options contracts previously sold as covered calls for 20 times, 30 times, even 40 times the premium received at the time of the opening transaction.” (Italics omitted.) Maurice allegedly “suffered from dementia” during this period, which “intensified his reliance on” Morgan Stanley, and although Maurice’s children had reminded Privitelli of their father’s condition, Privitelli dismissed their concerns about the appropriateness of the trading strategy. Apart from options trading, plaintiffs alleged that Morgan Stanley and Privitelli provided negligent tax advice in 2007 regarding Maurice’s resignation as a trustee, necessitating a 2011 retitling of trust assets and, because of concerns the delay 5 would draw IRS scrutiny given Maurice’s declining health, a split dollar life insurance contract at costs exceeding $700,000. The parties litigated the arbitration for approximately four years. On January 28, 2019, a three-member FINRA panel unanimously granted Morgan Stanley’s motion to dismiss, finding, among other things, that “[t]he records show that Maurice Voce was actively managing his own accounts and was aware of the values of the stocks and highly speculative options he was engaged in trading between 1993 and 1998,” and that Maurice “knew the values and amounts of each trade as well as the commissions charged by Respondent.” The dismissal was not on the merits and was without prejudice to plaintiffs pursuing their claims in court. C. The Complaint On April 25, 2019, Mario, Julia, and DeVone, as co-trustees of the Trusts, filed this lawsuit against Morgan Stanley and Privitelli. They filed the operative first amended complaint in July 2019, joined by DeVone in his capacity as personal representative of Maurice’s estate. The pleading asserts two causes of action for breach of fiduciary duty (by the Trusts), and financial elder abuse under Welfare and Institutions Code section 15610.30 (on Maurice’s behalf by DeVone as his personal representative).3 With respect to both claims, the pleading’s allegations largely tracked those plaintiffs asserted in the FINRA 3 Unless otherwise designated, statutory references are to the Welfare and Institutions Code. Section 15610.30 is part of the Elder Abuse and Dependent Adult Civil Protection Act (the Elder Abuse Act, § 15600 et seq.). 6 arbitration. With respect to both claims, plaintiffs alleged defendants breached their fiduciary duty and committed financial elder abuse by, among other things, engaging in “high frequency options trading” and failing to “reduce Maurice’s risk/cost exposure,” “despite [his] age and mental-cognitive impairments.” D. Trial and the Statute of Limitations Ruling Trial began with motions in limine on February 29, 2024, and testimony commenced on March 4, 2024. On March 19, 2024, the trial court held a hearing on the statute of limitations—an issue raised in one of defendants’ in limine motions. In a written ruling, the court found plaintiffs’ claims for breach of fiduciary duty and financial elder abuse were governed by a four-year limitations period, and that plaintiffs had timely filed suit. However, based on its application of the limitations statutes, the court also held plaintiffs were barred from seeking damages for conduct that occurred on or before September 11, 2010—representing the outer limit of the “remaining 21 months of the unexpired statute of limitations period.” As explained in its written ruling, the trial court applied the delayed discovery rule, finding plaintiffs “knew or should have discovered” the facts supporting their claims at the “latest” on June 11, 2012, when Morgan Stanley notified plaintiffs it was terminating services on Maurice’s accounts, and at the “earliest” on April 10, 2012, when a tax and estate planning attorney advised plaintiffs “to consult litigation counsel concerning the management of [Maurice’s] trust accounts by Morgan Stanley.” The court also determined the limitations period was tolled during the pendency of plaintiffs’ FINRA arbitration—from its 7 filing on June 15, 2014 to its conclusion on January 29, 2019— and that the complaint, filed April 25, 2019, was therefore timely. Having determined the action was timely filed, the trial court then went on to calculate how much of the four-year limitations period had “expired,” net of the tolled interval, as of the filing date. It found that approximately 24 months of the limitations period had “expired” between the June 11, 2012 accrual date and the commencement of the FINRA arbitration on June 15, 2014, and that a further 86 days “expired” between the conclusion of the arbitration on January 29, 2019 and the filing of the complaint on April 25, 2019—together consuming approximately 27 months of the four-year period and leaving approximately 21 months unexpired. Instead of treating those 21 months as a measure of how much time remained for plaintiffs to have filed suit, the court held this “unexpired” period set the outer limit of what conduct could give rise to compensable damages—that is, the court projected the 21-month figure backward from the June 11, 2012 accrual date, arriving at a cutoff of “approximately September 11, 2010.” Based on this application of the limitations statute, the court ruled “[a]ny alleged wrongful acts or omissions occurring before September 11, [2010], are not compensable and cannot be the basis for any liability or damages in this action.” Applying this same reasoning to the breach of fiduciary duty claim, the court separately ruled that plaintiffs could not recover damages stemming from the split dollar life insurance policy or other non-trading related conduct, holding those categories of damages were barred on two independent grounds: first, because any related claims “accrued on or before September 11, 2010”; and second, because “Morgan Stanley and John 8 Privitelli were not hired by Maurice Voce nor Trustee Stella Voce for tax advice, estate planning or the payment of or amount of gift taxes,” and Maurice “never paid” defendants for any such advice. (Fn. omitted.) E. Defendants’ Motion for Nonsuit At the close of plaintiffs’ case-in-chief, defendants moved for nonsuit. Their written motion first asked the trial court to adopt and incorporate its earlier statute of limitations ruling— narrowing the relevant evidence of liability and damages to the 2010–2012 period and excluding evidence related to the split dollar policy and non-trading breach of fiduciary duty allegations on the ground that defendants were “not hired for tax advice or estate planning.” With respect to the financial elder abuse claim, defendants argued plaintiffs had failed to present evidence of a “taking,” “wrongful use,” or “harm” as required under section 15610.30, because the 850 account had made substantial capital gains during the compensable 2010–2012 period such that no cognizable harm had been proven. Defendants also argued a Trading Authorization agreement that the Trusts had provided to Morgan Stanley in 2007—granting Maurice authority to direct trades in the accounts “just as if he were the trustee”—estopped plaintiffs from challenging any trades made in reliance on it. As for the breach of fiduciary duty claim, defendants argued plaintiffs’ theory sounded in “churning” and plaintiffs had failed to offer the sort of expert testimony required to submit an excessive-trading theory to a jury. In support of this ground, defendants pointed to the testimony of plaintiffs’ securities expert, Charles Hartman, who “offered no opinion about the 9 turnover in the account” and, at his deposition, admitted he had “no opinion on ‘churning.’ ” F. The Nonsuit Ruling The trial court granted nonsuit on the financial elder abuse claim in an oral ruling from the bench, concluding plaintiffs had failed to present evidence of a taking, wrongful use, intent to defraud, undue influence, or harm. The court found there was “no evidence that Morgan Stanley or Mr. Privitelli took, hid, appropriated, obtained, or retained . . . any of the decedent’s property,” emphasizing that “the account only grew in value.” As for the breach of fiduciary duty claim, the court received supplemental briefing on whether the commissions were “excessive,” before issuing a written ruling granting nonsuit. The court determined plaintiffs offered insufficient evidence of an industry benchmark, standard, or methodology to establish the excessiveness of defendants’ commissions, emphasizing plaintiffs’ expert had disclaimed any opinion on damages or “churning.” In the absence of such testimony, the court concluded a jury would be forced to speculate as to whether the commissions charged were excessive. The court also reasoned that the relevant trading costs were incurred in connection with a “substantial gain” to the account and were “in the best interest of Maurice Voce’s investment objectives.” Because “the trust accounts increased in value from 2010 [through] 2012,” the court concluded there was no breach of fiduciary duty, as a matter of law. The court entered judgment, and this timely appeal followed. 10  DISCUSSION A. Standard of Review A motion for nonsuit tests the sufficiency of the plaintiff’s evidence before the defendant is put to its own case. Because granting the motion removes the case from the jury, “courts grant motions for nonsuit only under very limited circumstances.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838 (Carson), citing Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117.) A trial court must not grant the motion if the evidence presented by the plaintiff would support a jury verdict in the plaintiff’s favor. (Carson, at p. 838.) In determining whether the plaintiff’s evidence is sufficient, “ ‘the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the [plaintiff’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in [plaintiff’s] favor.” ’ ” (Carson, supra, 36 Cal.3d at pp. 838–839.) On appeal from a judgment of nonsuit, we are “guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.” (Carson, supra, 36 Cal.3d at p. 839.) The judgment “ ‘cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ ” (Ibid.) “Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is 11 warranted if there is ‘some substance to plaintiff’s evidence upon which reasonable minds could differ.’ ” (Ibid.) In reviewing a judgment of nonsuit, we may consider “[o]nly the grounds specified by the moving party in support of its motion.” (Carson, supra, 36 Cal.3d at p. 839.) Thus, we confine our review of the nonsuit rulings to the grounds defendants asserted below, and do not consider grounds defendants might have but did not raise. B. The Statute of Limitations Ruling Was Erroneous 1. Governing Law Statutes of limitations “exist[ ] to promote the diligent assertion of claims, ensure defendants the opportunity to collect evidence while still fresh, and provide repose and protection from dilatory suits once excess time has passed.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 (Aryeh).) “The duration of the limitations period marks the legislatively selected point at which, for a given claim, these considerations surmount the otherwise compelling interest in adjudicating [valid claims] on their merits.” (Ibid.) “The limitations period, the period in which a plaintiff must bring suit or be barred, runs from the moment a claim accrues.” (Aryeh, supra, 55 Cal.4th at p. 1191; see Code Civ. Proc., § 312 [an action must “be commenced within the periods prescribed in this title, after the cause of action shall have accrued”].) “Traditionally at common law, a ‘cause of action accrues “when [it] is complete with all of its elements”—those elements being wrongdoing, harm, and causation.’ [Citations.] This is the ‘last element’ accrual rule: ordinarily, the statute of limitations runs 12 from ‘the occurrence of the last element essential to the cause of action.’ ” (Aryeh, at p. 1191.) “To align the actual application of the limitations defense more closely with the policy goals animating it, the courts and the Legislature have over time developed a handful of equitable exceptions to and modifications of the usual rules governing limitations periods. These doctrines may alter the rules governing either the initial accrual of a claim, the subsequent running of the limitations period, or both.” (Aryeh, supra, 55 Cal.4th at p. 1192.) “The ‘ “most important” ’ of these doctrines, the discovery rule, where applicable, ‘postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.’ ” (Ibid., quoting Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397; accord, Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).) “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ ” (Fox, at p. 807.) Once a plaintiff has that suspicion, she is “required to conduct a reasonable investigation,” and is charged with knowledge of whatever information such an investigation would have revealed. (Id. at p. 808.) “Equitable tolling, in turn, may suspend or extend the statute of limitations when a plaintiff has reasonably and in good faith chosen to pursue one among several remedies and the statute of limitations’ notice function has been served.” (Aryeh, supra, 55 Cal.4th at p. 1192, citing McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99–100.) The doctrine applies to arbitrations on the same terms as court proceedings. (Rodriguez v. Southern Cal. Dist. Council of 13 Laborers (1984) 160 Cal.App.3d 956, 961; Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 408.) 2. The Trial Court Misapplied the Statute of Limitations as an Eroding Damages Window Plaintiffs contend the court erred by treating the statute of limitations not as a threshold test of whether their suit was timely filed, but as a mechanism for shrinking the universe of conduct for which plaintiffs could recover damages. As plaintiffs put it, despite finding their claims timely under the discovery rule, the trial court applied the statute of limitations as an “eroding” damages window that placed an “outside limit” on the period for which plaintiffs could offer evidence to prove their claims. We agree the court misapplied the governing law. In its written ruling, the trial court expressly found that plaintiffs “either knew or should have known (discovered) the basis for their claims,” at the latest, on June 11, 2012, when Morgan Stanley notified them it was terminating services on Maurice’s accounts. The court further found the limitations period was tolled during the pendency of the FINRA arbitration, from June 15, 2014 to January 29, 2019, and that the complaint, filed April 25, 2019, was therefore timely. Under the principles set out above, these findings should have resolved the statute of limitations question in its entirety. A cause of action either accrues, is timely filed, and may proceed—with the plaintiff entitled to seek recovery for the full course of the wrongful conduct underlying that cause of action—or it does not. The statute of limitations defines only the period within which an action must be commenced after accrual; it does not, once the condition for timeliness is satisfied, operate to constrain the scope of actionable conduct. (See Code Civ. Proc., § 312 [an action “can 14 only be commenced within the periods prescribed in this title, after the cause of action shall have accrued” (italics added)]; Fox, supra, 35 Cal.4th at pp. 807–815 [discussing the delayed discovery rule and the timeliness of an action when accrual is postponed].) Asaro v. Maniscalco (2024) 103 Cal.App.5th 717 (Asaro) is instructive. Maniscalco—a former trustee and beneficiary—was found liable for breach of fiduciary duty based on his misappropriation of trust assets, including $430,000 in certificates of deposit that he cashed out in January and February 2010, and real property that he conveyed to his own company in September 2010. (Id. at pp. 722–724.) Antoinette— the beneficiary whose community property interest was principally at stake—died in late November 2010, and her nephew—another trust beneficiary—did not file his probate petition against Maniscalco until 2018. (Id. at pp. 724–725.) Maniscalco argued the claims were untimely because his co- trustee knew of the misappropriations when they occurred. (Id. at p. 728.) The Asaro court disagreed, affirming the judgment for the beneficiary in full, including reimbursement of $547,370 to the trust and a statutory penalty of $1,094,740. (Id. at pp. 724– 725, 739, 744.) With respect to the breach of fiduciary duty claim— subject to a three-year limitations period running from when “the beneficiary discovered, or reasonably should have discovered, the subject of the claim” (Prob. Code, § 16460, subd. (a)(2))—the Asaro court concluded the claim was timely because the beneficiary “did not have reason to know of his claim more than three years before filing suit.” (Asaro, supra, 103 Cal.App.5th at p. 729.) As for the elder abuse claim—subject to a four-year 15 limitations period running from when the plaintiff “discover[ed] or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse” (§ 15657.7)—the reviewing court held the claim timely on two independent grounds: the limitations period was tolled during the beneficiary-victim’s lifetime because she lacked the legal capacity to make decisions (Code Civ. Proc., § 352, subd. (a)), and, separately, the nephew who ultimately sued had “no reason to know of a potential cause of action for elder abuse” given Maniscalco’s concealment. (Asaro, at pp. 731–732.) Critically, having determined accrual was postponed and the claims were timely, the Asaro court did not limit recovery to conduct within three or four years of the date suit was filed. (See Asaro, supra, 103 Cal.App.5th at pp. 729–732.) Rather, it affirmed recovery for misconduct occurring seven or eight years before the claims were filed, because the claims themselves were timely. Had the statute of limitations instead operated as the trial court applied it here—as a backward-measured boundary on compensable conduct—the misappropriation in Asaro would have fallen outside any such boundary and gone uncompensated. That was not the result in Asaro, and nothing in the discovery rule, the law of tolling, or the law governing accrual generally supports treating a single, timely-accrued claim as subject to a second, independent temporal limit on what portions of the underlying conduct may be considered for establishing liability and damages. The trial court, however, imposed such a limit here. Having calculated that approximately 21 months of the four-year limitations period remained unexpired as of the date of filing, the court did not treat that figure as confirmation of timeliness and stop there. Instead, it projected the 21-month figure backward 16 from the June 11, 2012 accrual date, and ruled that “[a]ny alleged wrongful acts or omissions occurring before September 11, [2010], are not compensable and cannot be the basis for any liability or damages in this action.” This was error. 3. The Continuous Accrual Doctrine Does Not Save the Trial Court’s Ruling Defendants do not defend the trial court’s stated reasoning. Instead, they offer a different justification for the September 2010 cutoff—namely, that it reflects a proper application of the “continuous accrual doctrine,” under which each options trade in Maurice’s account gave rise to a discrete, separately accruing claim, such that injuries for conduct occurring more than four years before the April 2019 filing date, net of the tolled period for the FINRA arbitration, were time-barred. The record does not support the contention. Separate and distinct from the discovery rule, the continuous accrual doctrine “posits that a cause of action challenging a recurring wrong may accrue not once but each time a new wrong is committed.” (Aryeh, supra, 55 Cal.4th at p. 1189.) “Generally speaking, continuous accrual applies whenever there is a continuing or recurring obligation: ‘When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.’ ” (Id. at p. 1199.) Unlike the continuing violation doctrine, which renders an entire course of conduct actionable once any part of it falls within the limitations period, continuous accrual “supports recovery only for damages arising from those breaches falling within the limitations period.” (Ibid.) Defendants’ attempt to recast the trial court’s ruling as a proper application of the continuous accrual doctrine fails 17 because its necessary premise is that plaintiffs knew or should have known of their claims more than four years before they filed this action. As our high court explained in Aryeh, the continuous accrual doctrine exists to prevent “the inequities that would arise if the expiration of the limitations period following a first breach of duty or instance of misconduct were treated as sufficient to bar suit for any subsequent breach or misconduct.” (Aryeh, supra, 55 Cal.4th at p. 1198, italics added.) In other words, the doctrine presupposes a threshold finding that the limitations period would have expired as to the claim considered as a whole, and its purpose is to rescue a plaintiff from that consequence where the underlying “ ‘obligation or liability arises on a recurring basis.’ ” (Id. at p. 1199.) Contrary to defendants’ premise, the trial court expressly found that “the earliest date that plaintiffs either knew or should have known (discovered) the basis for their claims . . . was at the trustee’s meeting held on April 10, 2012,” when plaintiffs’ tax and estate planning attorney “advised the trustees to consult litigation counsel concerning the management of Maurice Voce’s trust accounts by Morgan Stanley.” And, when credited with the four-and-a-half-year tolling period during the FINRA arbitration, the court found plaintiffs timely filed their claims. That finding categorically undermines the necessary premise of defendants’ argument. It is also worth recognizing that continuous accrual is—by design—a doctrine that operates in a plaintiff’s favor. It operates not only as a vehicle for preserving a plaintiff’s ability to recover for recent wrongs notwithstanding the staleness of earlier ones, but it also exists to ensure that a defendant engaged in “long- standing misfeasance” does not “obtain immunity in perpetuity 18 from suit even for recent and ongoing misfeasance.” (Aryeh, supra, 55 Cal.4th at p. 1198.) Defendants’ attempt to invoke the doctrine to confine, rather than expand, the conduct for which plaintiffs may recover inverts its purpose. Having said this, we must also be clear about the limits of what we decide at this stage. Before any determination can be made about whether the continuous accrual doctrine applies, the trier of fact must first determine whether plaintiffs are entitled to the benefit of delayed accrual under the discovery rule and, if so, when they knew or should have known of the facts giving rise to their claims. As we explain below, the trial court improperly took that question from the jury, despite conflicting evidence on this disputed question of fact. If the jury finds plaintiffs filed their lawsuit more than four years after they should have discovered their claims, plaintiffs may nonetheless seek to prove that defendants’ alleged liability arose on a recurring basis, such that new causes of action accrued each time a wrongful act occurred, triggering a new limitations period under the continuous accrual doctrine. (See Aryeh, supra, 55 Cal.4th at p. 1199.) Because application of the delayed discovery rule and the continuous accrual doctrine depend on the resolution of disputed factual issues, these are matters for a jury—not the court—to decide. (Fox, supra, 35 Cal.4th at pp. 806–807; CACI Nos. 454 & 455.) 4. The Trial Court Improperly Decided Accrual as a Matter of Law Despite Conflicting Evidence Independent of its misapplication of the statute of limitations, the trial court’s accrual finding was itself erroneous because it resolved disputed factual questions that should have been submitted to the jury. 19  The statute of limitations is an affirmative defense, the resolution of which is “normally a question of fact.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly); Aryeh, supra, 55 Cal.4th at p. 1191; see CACI No. 454.) It becomes a question of law only “where the uncontradicted facts . . . are susceptible of only one legitimate inference.” (Jolly, at p. 1112; Aryeh, at p. 1191.) The same rule governs application of the discovery rule: whether a plaintiff knew or should have known the facts supporting her claim is a question for the trier of fact where the evidence is disputed or subject to conflicting inferences; it may be decided by the court only when reasonable minds could reach but one conclusion. (See Fox, supra, 35 Cal.4th at pp. 806–807; CACI No. 455.) Critically, what matters under the discovery rule is not simply whether a plaintiff knew of the transactions later alleged to be wrongful, but whether the plaintiff had “ ‘reason at least to suspect a factual basis for [the] elements’ ” of the claim—that is, reason to suspect wrongdoing, not merely reason to be aware of the underlying facts. (Fox, supra, 35 Cal.4th at p. 807.) Knowledge that a transaction occurred and knowledge that it was wrongful are related but distinct inquiries, and evidence bearing on the former does not necessarily resolve the latter as a matter of law. In making their case for application of the continuous accrual doctrine—which, as discussed, requires a threshold determination that plaintiffs’ claims were untimely—defendants catalogue substantial evidence that would support an earlier accrual-date finding than the one the trial court made. For example, defendants point to evidence that Maurice was “fully in control of his options trading, was aware of the costs and the 20 performance, and had no memory lapses or other cognitive issues” before 2010; that he received trade confirmations reflecting the commissions on each transaction; that he kept his own detailed trading log; and that he wrote a letter in 1992 (when he was over 70 years old) confirming his understanding of the risks and costs of options trading generally. Defendants also point to evidence that Stella and, later, the trustees had access to Maurice’s account statements and trade confirmations, as well as the power to terminate his Trading Authorization or stop the trading altogether, but never did so. And, defendants cite evidence that a principal with a different brokerage firm (who worked with DeVone) had advised Maurice in 2007 that Morgan Stanley’s commissions were excessive and that Maurice’s options trading was risky. A jury could find this evidence sufficient to place Maurice and the Trusts on inquiry notice of the wrongdoing plaintiffs later alleged, well before the date the trial court identified for its discovery and accrual finding. A jury could equally find that Maurice’s acceptance of ordinary market risk, and his own tracking of trade-by-trade costs, reflected an engaged investor’s comfort with a strategy he had chosen, without any reason to suspect his fiduciary was acting wrongfully in administering it. Both are permissible inferences, and because the evidence would support both later and earlier accrual findings under the delayed discovery rule, the question should have gone to the jury rather than being resolved by the court before the close of plaintiffs’ case. The trial court erred in deciding the accrual question as a matter of law. (See Fox, supra, 35 Cal.4th at pp. 806–807; CACI Nos. 454 & 455.) 21 C. The Trial Court Erred in Granting Nonsuit of the Elder Abuse Claim Defendants contend the statute of limitations ruling was at most harmless error because plaintiffs’ evidence was insufficient to establish a wrongful taking under the Elder Abuse Act, regardless of the period considered. As they argued in their motion for nonsuit, defendants maintain Maurice was not harmed by the commissions charged on his options trades, or by the trades themselves, because his accounts increased in value over the relevant period and, in any event, plaintiffs ratified the trading activity by keeping the Trading Authorization in place, even after Maurice’s evident cognitive decline. In granting nonsuit, the trial court reached the same conclusion on the former point, finding Maurice “was not harmed, and, in fact, the account only grew in value.” This was error, and it rendered the statute of limitations ruling prejudicial. As we will explain, proof of a wrongful taking under the Elder Abuse Act does not require evidence of a net financial loss, and the evidence plaintiffs presented—including evidence excluded under the statute of limitations ruling—was sufficient to reject the ratification defense and to support a jury finding of liability. The Elder Abuse Act is a remedial statute, reflecting the Legislature’s findings that elders are “a class of persons who are particularly vulnerable to abuse” and that the state “ ‘has a responsibility to protect’ ” them. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 858 (Mahan), quoting § 15600, subd. (a).) Since 1991, the Act has been structured around encouraging private civil enforcement of laws against elder abuse—a purpose the Legislature pursued by attaching heightened remedies, including mandatory attorney’s fees and 22 costs, “designed to provide incentives for ‘interested persons to engage attorneys to take up the cause of abused elderly persons.’ ” (Mahan, at p. 858, quoting § 15600, subd. (j).) Courts accordingly construe the Act’s financial abuse provisions liberally, resolving close questions “in favor of” the class of elders the statute is designed to protect. (Mahan, at pp. 860–861.) An elder is any person residing in this state, who is 65 years of age or older. (§ 15610.27.) Financial elder abuse occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder . . . for a wrongful use or with intent to defraud, or both.” (§ 15610.30, subd. (a)(1).) The statute defines “[t]akes, secretes, appropriates, obtains, or retains” broadly: an elder is deprived of property, and thus the property has been taken within the meaning of the statute, whenever the eld