California Civil Jury Instructions (CACI) (2017)

3101. Financial Abuse - Essential Factual Elements— Enhanced Remedies Sought—Individual or Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657, 15610.30)

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3101.Financial Abuse—Decedent’s Pain and Suffering (Welf. &
Inst. Code, § 15657.5)
[Name of plaintiff] also seeks to recover damages for [name of decedent]’s
pain and suffering. To recover these damages, [name of plaintiff] must
also prove by clear and convincing evidence that [name of individual
defendant/[name of employer defendant]’s employee] acted with
[recklessness/oppression/fraud/ [or] malice] in committing the financia
New September 2003; Revised June 2005, October 2008, April 2009
Directions for Use
Give this instruction along with CACI No. 3100, Financial Abuse—Essential
Factual Elements, if the plaintiff seeks survival damages for pain and suffering in
addition to conventional tort damages and attorney fees and costs. (See Welf. &
Inst. Code, § 15657.5.) Although one would not normally expect that financia
abuse alone would lead to a wrongful death action, the Legislature has provided
this remedy should the situation arise.
If the individual responsible for the neglect is a defendant in the case, use “[name
of individual defendant].” If only the individual’s employer is a defendant, use
“[name of employer defendant]’s employee.”
The instructions in this series are not intended to cover every circumstance in
which a plaintiff may bring a cause of action under the Elder Abuse and Dependent
Adult Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Financial Abuse. Welfare and Institutions Code section
“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].)
• “In order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty of
something more than negligence; he or she must show reckless, oppressive,
fraudulent, or malicious conduct. The latter three categories involve
‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’
nature. ‘Recklessness’ refers to a subjective state of culpability greater than
simple negligence, which has been described as a ‘deliberate disregard’ of the
‘high degree of probability’ that an injury will occur. Recklessness, unlike
negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a
failure to take precautions’ but rather rises to the level of a ‘conscious choice of
a course of action . . . with knowledge of the serious danger to others involved
in it.’ ” (Delaney, supra, 20 Cal.4th at pp. 31–32, internal citations omitted.)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and
allows survivors to recover pain and suffering damages in cases of intentional
and reckless abuse where the elder has died.” (Mack v. Soung (2000) 80
Cal.App.4th 966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds
in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202
Cal.Rptr.3d 447, 370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence
recklessness, oppression, fraud, or malice in the commission of elder abuse.
Even then, those damages would be subject to the $250,000 cap placed by Civil
Code section 3333.2, subdivision (b) for noneconomic damages against a health
care provider. In this limited circumstance, the decedent’s right to pain and
suffering damages would not die with him or her; the damages would be
recoverable by a survivor.” (ARA Living Centers—Pacific Inc. v. Superior
Court (1993) 18 Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 8:5–8:7, 8:15 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.23, 6.30–6.34, 6.45–6.47
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)