Elder Abuse Defined

Civil Protection Act (“EADACPA”) protects elders from financial abuse and abuse, abandonment, and neglect. (Welf. & Inst. Code, Secs. 15600 et seq.)

Welfare and Institutions Code sections 15657-15675 define civil remedies for physical abuse or neglect or financial abuse of elders.

Financial Elder Abuse Defined

Financial elder abuse occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependant adult for a wrongful use or with the intent to defraud” or “[a]ssists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependant adult for a wrongful use or with the intent to defraud.” Welf. & Inst. Code Secs. 15610.30(a)(1) and (2).

The elements of a cause of action for financial elder abuse are statutory. Welfare and Institutions Code section 15610.30 provides:

1. “‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following:
1. Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud or both.
2. Assists 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.
3. Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code.
2. A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.”

Pleading and Evidentiary Standard

Generally, to plead a cause of action, the complaint must contain a “statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc, § 425.10(a).) Although pleading conclusions of law does not fulfill this requirement, it has long been recognized that “[t]he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. For example, the courts have permitted allegations which obviously included conclusions of law and have termed them ‘ultimate facts' or ‘conclusions of fact.” ’ (Burks v. Poppy-Construction Co. (1962) 57 Cal.2d 463, 473.) However, because causes of action for elder and dependent abuse are governed by a statute, the elements must be alleged with particularity. (See Welf. & Inst. Code, § 15600, et seq.; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82 [elder abuse elements are statutory]; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [in general statutory claims must be alleged with particularity].)

“To obtain enhanced remedies under the Elder Abuse Act, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than mere negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31.)

Legislative Intent

The Legislature stated in section 15600 that it passed this law because elders and dependent adults may be subjected to abuse, neglect, or abandonment. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 787.) In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. (Id.)

Punitive Damages

In the decision Covenant Care, 32 Cal.4th at 776 a later reference makes clear that W&I Code § 15657 authorizes the award of punitive damages.

In order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf. & Inst.Code, Sec. 15657 [requiring "clear and convincing evidence that a defendant is liable for" elder abuse and "has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse"] with Civ.Code, Sec. 3294, subd. (a) [requiring "clear and convincing evidence" that the defendant has been guilty of oppression, fraud, or malice].) Accordingly, that plaintiffs in an Elder Abuse Act action may, on appropriate proof (Civ.Code, Sec. 3294, subd. (a)), recover punitive damages entails no danger directly analogous to the danger that exists when " 'punitive damages may be awarded on what is traditionally considered a negligence cause of action' " (Central Pathology, supra, 3 Cal.4th at 190,).

Welfare and Institutions Code section 15657 provides: “Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or financial abuse as defined in Section 15610.30, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law:

1. The court shall award to the plaintiff reasonable attorney's fees and costs. The term 'costs' includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
2. The limitations imposed by Section 337.34 [sic: should be 377.34] of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
3. The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.”

Covenant Care, 32 Cal.4th at 780 fn. 5.