California Civil Jury Instructions (CACI) (2017)

3102a. Employer Liability for Enhanced Remedies—Both Individual and Employer De- fendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))

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3102A.Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants (Welf. & Inst. Code,
§§ 15657, 15657.05; Civ. Code, § 3294(b))
[Name of plaintiff] also claims that [name of employer defendant] is
responsible for [attorney fees and costs/ [and] [name of decedent]’s pain
and suffering before death]. To establish this claim, [name of plaintiff]
must prove by clear and convincing evidence [insert one or more of the
following four options:]
1. [That [name of individual defendant] was an officer, a director, or
a managing agent of [name of employer defendant] acting on
behalf of [name of defendant];] [or]
2. [That an officer, a director, or a managing agent of [name of
employer defendant] had advance knowledge of the unfitnes of
[name of individual defendant] and employed [him/her] with a
knowing disregard of the rights or safety of others;] [or]
3. [That an officer, a director, or a managing agent of [name of
employer defendant] authorized [name of individual defendant]’s
conduct;] [or]
4. [That an officer, a director, or a managing agent of [name of
employer defendant] knew of [name of individual defendant]’s
wrongful conduct and adopted or approved the conduct after it
An employee is a “managing agent” if he or she exercises substantial
independent authority and judgment in his or her corporate decision-
making such that his or her decisions ultimately determine corporate
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
Derived from former CACI No. 3102 October 2008; Revised April 2009
Directions for Use
This instruction should be given with CACI No. 3104 (neglect), CACI No. 3107
(physical abuse), or CACI No. 3110 (abduction) if the plaintiff is seeking the
enhanced remedies of attorney fees and costs and/or damages for a decedent’s pain
and suffering against an employer and the employee is also a defendant. (See Civ.
Code, § 3294(b) Welf. & Inst. Code, §§ 15657(c), 15657.05.) If the employer is the
only defendant, give CACI No. 3102B, Employer Liability for Enhanced
Remedies—Employer Defendant Only. The requirements of Civil Code section
3294(b) need not be met in order to obtain enhanced remedies from an employer
for financia abuse. (See Welf. & Inst. Code, § 15657.5(c).)
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 Physical Abuse or Neglect. Welfare and Institutions
Code section 15657.
Enhanced Remedies Against Employer Based on Acts of Employee. Welfare
and Institutions Code section 15657.5(c).
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
• Punitive Damages Against Employer. Civil Code section 3294(b).
• “[A] findin of ratificatio of [agent’s] actions by [employer], and any other
finding made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “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.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:67, 10:1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.41–6.44
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)