CACI No. 3101. Financial Abuse - Decedent’s Pain and Suffering (Welf. & Inst. Code, § 15657.5)

Judicial Council of California Civil Jury Instructions (2023 edition)

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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 financial
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 financial 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 (11th ed. 2017) Torts, §§ 1865-1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 8:5-8:7, 8:15 (The Rutter
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)

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