CACI No. 3102A. Employer Liability for Enhanced Remedies - Both Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))

Judicial Council of California Civil Jury Instructions (2023 edition)

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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 unfitness of
[name of individual defendant] and employed [him/her/nonbinary
pronoun] 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 the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
[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, May 2020
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
financial 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, Neglect, or Abandonment. 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] finding of ratification of [agent’s] actions by [employer], and any other
findings 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 (11th ed. 2017) Torts, §§ 1865-1871
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)

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