CACI No. 3110. Abduction - Enhanced Remedies Sought (Welf. & Inst. Code, § 15657.05)

Judicial Council of California Civil Jury Instructions (2020 edition)

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3110.Abduction - Enhanced Remedies Sought (Welf. & Inst.
Code, § 15657.05)
[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 the
abduction by clear and convincing evidence.
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
New September 2003; Revised December 2005, April 2008, October 2008
Directions for Use
Give this instruction along with CACI No. 3109, Abduction - Essential Factual
Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs and/
or damages for the decedent’s predeath pain and suffering. (See Welf. & Inst. Code,
§ 15657.05.)
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 Abduction. Welfare and Institutions Code section
15657.05.
• “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.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as all
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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, §§ 7:1-7:3 (The Rutter
Group)
3111. Reserved for Future Use
ELDER ABUSE & DEPENDENT ADULTS CACI No. 3110
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