California Civil Jury Instructions (CACI)

3100. Financial Abuse - Essential Factual Elements (Welf. & Inst. Code, 15610.30)

[Name of plaintiff] claims that [name of defendant] violated the Elder Abuse and Dependent Adult Civil Protection Act by taking financial advantage of [him/her/[name of decedent]]. To establish this claim, [name of plaintiff] must prove all of the following are more likely to be true than not true:

1. That [name of defendant] [insert one of the following:]

[[took/hid/appropriated/retained] [name of plaintiff/ decedent]'s property;]

[[assisted in [taking/hiding/appropriating/retaining] [name of plaintiff/decedent]'s property;]

2. That [name of plaintiff/decedent] was [65 years of age or older/a dependent adult] at the time of the conduct;

3. That [name of defendant] [[took/hid/appropriated/retained]/ assisted in [taking/hiding/appropriating/retaining]] the property [for a wrongful use/[or] with the intent to defraud];

4. That [name of plaintiff/decedent] was harmed; and

5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

[One way [name of plaintiff] can prove that [name of defendant] [[took/hid/appropriated/retained]/assisted in [taking/hiding/ appropriating/retaining]] the property for a wrongful use is by proving both of the following:

1. That [name of plaintiff/decedent] had the right to have the property [transferred/made readily available] to [him/her/ [[his/her] [conservator/trustee/representative/attorney-in-fact]]; and

2. That [name of defendant] knew or should have known that [name of plaintiff/decedent] had this right.

[Name of defendant] should have known that [name of plaintiff/ decedent] had this right if, on the basis of information received by [[name of defendant]/[name of defendant]'s authorized third arty], it would have been obvious to a reasonable person that [name of plaintiff/decedent] had the right to have the property [transferred/made readily available] to [him/her/[[his/her] [conservator/trustee/representative/attorney-in-fact]].

Directions for Use

This instruction is intended for cases brought by the victim of the abuse, or by the survivors of the victim. If the victim is the plaintiff and is seeking damages for pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) in the Damages series. Plaintiffs who are suing for their decedent's pain and suffering should see CACI No. 3101, Financial Abuse—Enhanced Remedies Sought Against Individual/Employee Defendant (Welf. & Inst. Code, 15657.5), or CACI No. 3102, Financial Abuse—Enhanced Remedies Sought—Employer Defendant (Welf. & Inst. Code, 15657.5, 15610.30). The instructions in this series are not intended to cover every circumstance in which a plaintiff can bring a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act.

If the plaintiff is also seeking tort damages against the employer under a theory of vicarious liability, see instructions in the Vicarious Responsibility series (CACI No. 3700 et seq.).

Add the bracketed portion if the plaintiff is seeking to prove wrongful use by showing that defendant acted in bad faith as defined by the statute. This is not the exclusive manner of proving wrongful conduct under the statute. (See Welf. & Inst. Code, 15610.30(b).)

Sources and Authority

Welfare and Institutions Code section 15610.07 provides:

"Abuse of an elder or a dependent adult" means either of the following:

(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

Welfare and Institutions Code section 15610.30 provides:

(a) "Financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.

(b) A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.

(1) A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative.

(2) For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity's authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1).

(c) For purposes of this section, "representative" means a person or entity that is either of the following:

(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.

(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.

Welfare and Institutions Code section 15657.5 provides:

(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined n Section 15610.30, in addition to all other remedies otherwise provided by law, 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.

(b) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, and where it is proven by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse, in addition to reasonable attorney's fees and costs set forth in subdivision (a), and all other remedies otherwise provided by law, the following shall apply:

(1) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply.

(2) 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.

(c) Nothing in this section affects the award of punitive damages under Section 3294 of the Civil Code.

Welfare and Institutions Code section 15610.27 provides: " 'Elder' means any person residing in this state, 65 years of age or older."

Welfare and Institutions Code section 15610.23 provides:

(a) "Dependent adult" means any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.

(b) "Dependent adult" includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a

24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

"The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect." (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82 Cal.Rptr.2d 610, 971 P.2d 986].)

Secondary Sources

California Elder Law Litigation (Cont.Ed.Bar 2003-2005) 6.23, 6.30- 6.34

(Revised June 2005)