California Civil Jury Instructions (CACI) (2017)

3104. Neglect - Essential Factual Elements—Enhanced Remedies Sought—Individual or Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657, 15610.57)

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3104.Neglect—Enhanced Remedies Sought (Welf. & Inst. Code,
§ 15657)
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for
neglect by clear and convincing evidence, and 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 neglecting [name of
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
New September 2003; Revised June 2005, October 2008
Directions for Use
Give this instruction along with CACI No. 3103, Neglect—Essential Factual
Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs
and damages for the decedent’s predeath pain and suffering. (See Welf. & Inst.
Code, § 15657.)
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.”
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only.
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 Neglect. Welfare and Institutions Code section 15657.
“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 v. Baker (1999) 20 Cal.4th 23, 31–32 [82 Cal.Rptr.2d 610,
971 P.2d 986], 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].)
• “[I]f the neglect is ‘reckless[],’ or done with ‘oppression, fraud or malice,’ then
the action falls within the scope of section 15657 and as such cannot be
considered simply ‘based on . . . professional negligence’ within the meaning
of section 15657.2. The use of such language in section 15657, and the explicit
exclusion of ‘professional negligence’ in section 15657.2, make clear the Elder
Abuse Act’s goal was to provide heightened remedies for, as stated in the
legislative history, ‘acts of egregious abuse’ against elder and dependent adults,
while allowing acts of negligence in the rendition of medical services to elder
and dependent adults to be governed by laws specificall applicable to such
negligence. That only these egregious acts were intended to be sanctioned under
section 15657 is further underscored by the fact that the statute requires liability
to be proved by a heightened ‘clear and convincing evidence’ standard.”
(Delaney, supra, 20 Cal.4th at p. 35, internal citation omitted.)
• “[W]e distill several factors that must be present for conduct to constitute
neglect within the meaning of the Elder Abuse Act and thereby trigger the
enhanced remedies available under the Act. The plaintiff must allege (and
ultimately prove by clear and convincing evidence) facts establishing that the
defendant (1) had responsibility for meeting the basic needs of the elder or
dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew
of conditions that made the elder or dependent adult unable to provide for his
or her own basic needs; and (3) denied or withheld goods or services necessary
to meet the elder or dependent adult’s basic needs, either with knowledge that
injury was substantially certain to befall the elder or dependent adult (if the
plaintiff alleges oppression, fraud or malice) or with conscious disregard of the
high probability of such injury (if the plaintiff alleges recklessness). The
plaintiff must also allege (and ultimately prove by clear and convincing
evidence) that the neglect caused the elder or dependent adult to suffer physical
harm, pain or mental suffering.” (Carter v. Prime Healthcare Paradise Valley
LLC (2011) 198 Cal.App.4th 396, 406–407 [129 Cal.Rptr.3d 895], internal
citations omitted.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as
all elements of liability, must be proved by clear and convincing evidence for
purposes of an award of attorney fees.” (Perlin v. Fountain View Management,
Inc. (2008) 163 Cal.App.4th 657, 664 [77 Cal.Rptr.3d 743].)
• “We reject plaintiffs’ argument that a violation of the Act does not constitute an
independent cause of action. Accordingly, plaintiffs’ failure to obtain a verdict
establishing causation—one element of liability—by clear and convincing
evidence, precludes an award of attorney fees.” (Perlin, supra, 163 Cal.App.4th
at p. 666.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:9, 9:11.1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) § 2.72
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
3105. Reserved for Future Use