CACI No. 3102B. Employer Liability for Enhanced Remedies - Employer Defendant Only (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
Judicial Council of California Civil Jury Instructions (2023 edition)
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3102B.Employer Liability for Enhanced Remedies - Employer
Defendant Only (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code,
§ 3294(b))
[Name of plaintiff] also claims that [name of 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 the employee who committed the acts was an officer, a
director, or a managing agent of [name of defendant] acting on
behalf of [name of defendant]]; [or]
2. [That an officer, a director, or a managing agent of [name of
defendant] had advance knowledge of the unfitness of the
employee who committed the acts 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
defendant] authorized the conduct of the employee who committed
the acts;] [or]
4. [That an officer, a director, or a managing agent of [name of
defendant] knew of the wrongful conduct of the employee who
committed the acts and adopted or approved the conduct after it
occurred.]
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 not also a defendant. (See
Civ. Code, § 3294(b); Welf. & Inst. Code, §§ 15657(c), 15677.05.) If the employee
is also a defendant, give CACI No. 3102A, Employer Liability for Enhanced
Remedies - Both Individual and Employer Defendants. The requirements of Civil
Code section 3294(b) need not be met in order to obtain enhanced remedies from an
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employer for financial abuse. (See Welf. & Inst. Code, § 15657.5(c).)
Sources and Authority
• Enhanced Remedies for Physical Abuse, Neglect, or Abandonment. Welfare and
Institutions Code section 15657.
• Enhanced Remedies Against Employer for Acts of Employee. Welfare and
Institutions Code section 15657.5(c).
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
15657.05.
• 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].)
• “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)
ELDER ABUSE & DEPENDENT ADULTS CACI No. 3102B
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© Judicial Council of California.
