CACI No. 3109. Abduction - Essential Factual Elements (Welf. & Inst. Code, § 15610.06)

Judicial Council of California Civil Jury Instructions (2023 edition)

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3109.Abduction - Essential Factual Elements (Welf. & Inst. Code,

§ 15610.06)

[Name of plaintiff] claims that [[name of individual defendant]/ [and] [name

of employer defendant]] abducted [him/her/nonbinary pronoun/[name of

decedent]] in violation of the Elder Abuse and Dependent Adult Civil

Protection Act. To establish this claim, [name of plaintiff] must prove all

of the following:

1. That [[name of individual defendant]/[name of employer defendant]’s

employee] [removed [name of plaintiff/decedent] from California

and] restrained [him/her/nonbinary pronoun/[name of decedent]]

from returning to California;

2. That [name of plaintiff/decedent] was [65 years of age or older/a

dependent adult] at the time of the conduct;

3. [That [name of plaintiff/decedent] did not have the capacity to

consent to the [removal and] restraint;]

3. [or]

3. [That [[name of plaintiff/decedent]’s conservator/the court] did not

consent to the [removal and] restraint;]

4. That [name of plaintiff/decedent] was harmed; and

5. That [[name of individual defendant]’s/[name of employer

defendant]’s employee’s] conduct was a substantial factor in

causing [name of plaintiff/decedent]’s harm.

New September 2003; Revised December 2005, October 2008

Directions for Use

This instruction may be given in cases brought under the Elder Abuse and

Dependent Adult Civil Protection Act by the victim of elder abduction, or by the

survivors of the victim. If the victim is the plaintiff and is seeking damages for pain

and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and

Emotional Distress (Noneconomic Damage), in the Damages series.

If the individual responsible for the abduction is a defendant in the case, use “[name

of individual defendant]” throughout. If only the individual’s employer is a

defendant, use “[name of employer defendant]’s employee” throughout.

If the plaintiff seeks the enhanced remedies of attorney fees and costs, and in the

case of a wrongful death, the decedent’s pain and suffering, give CACI No. 3110,

Abduction - Enhanced Remedies Sought. (See Welf. & Inst. Code, § 15657.05.)

If the plaintiff is seeking enhanced remedies against the individual’s employer, also

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give either 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. To recover damages against the

employer under a theory of vicarious liability, see instructions in the Vicarious

Responsibility series (CACI No. 3700 et seq.).

The instructions in this series are not intended to cover every circumstance under

which a plaintiff may bring a cause of action under the Elder Abuse and Dependent

Adult Civil Protection Act.

Sources and Authority

• “Abduction” Defined. Welfare and Institutions Code section 15610.06.

• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07 provides:

• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.

• “Elder” Defined. Welfare and Institutions Code section 15610.27.

• “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.)

• “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, §§ 7:1, 7:3 (The Rutter

Group)

1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders,

§ 5.33[5] (Matthew Bender)

CACI No. 3109 ELDER ABUSE & DEPENDENT ADULTS

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Page last reviewed May 2023