California Civil Jury Instructions (CACI)
3111. Abduction - Essential Factual Elements—Enhanced Remedies Sought—Employer Defendant (Welf. & Inst. Code, §§ 15657.05, 15610.06)
[Name of plaintiff] claims that [name of defendant]'s employee(s) abducted [him/her/[name of decedent]] in violation of the Elder Abuse and Dependent Adult Civil Protection Act and that [name of defendant] is responsible for the harm. To establish this claim, [name of plaintiff] must prove all of the following by clear and convincing evidence:
1. That one or more of [name of defendant]'s employees [removed [name of plaintiff/decedent] from California and] restrained [him/her/[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/restraint];]
[That [[name of conservator]/the court] did not consent to the [removal/restraint];]
4. That [name of plaintiff/decedent] was harmed;
5. That the employee['s][s'] conduct was a substantial factor in causing [name of plaintiff/decedent]'s harm; and
6. [Insert one or more of the following:]
[That the employee[s] [was/were] [an] officer[s], [a] director[s], or [a] managing agent[s] of [name of defendant] acting in [a corporate/an employment] capacity;] [or]
[That an officer, a director, or a managing agent of [name of defendant] had advance knowledge of the unfitness of the employee[s] and employed [him/her/them] with a knowing disregard of the rights or safety of others;] [or]
[That an officer, a director, or a managing agent of [name of defendant] authorized the employee['s][s'] conduct;] [or]
[That an officer, a director, or a managing agent of [name of defendant] knew of the employee[s]' wrongful conduct and adopted or approved the conduct after it occurred.]
An employee is a "managing agent" if he or she exercises substantial independent authority and judgment in his or her corporate decision making such that his or her decisions ultimately determine corporate policy.
Directions for Use
This instruction is intended for plaintiffs who are seeking survival damages for pain and suffering and/or attorney fees and costs. Plaintiffs who are not seeking such damages should use CACI No. 3109, Abduction—Essential Factual Elements (Welf. & Inst. Code, § 15610.06). The instructions in this series are not intended to cover every circumstance in which a plaintiff can bring a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act.
If the plaintiff is seeking damages against the employer and the employee, use CACI No. 3110, Abduction—Essential Factual Elements—Enhanced Remedies Sought—Individual or Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657, 15610.06).
Sources and Authority
Welfare and Institutions Code section 15657.05 provides:
Where it is proven by clear and convincing evidence that an individual is liable for abduction, as defined in Section 15610.06, in addition to all other remedies otherwise provided by law:
(a)(1) The court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" shall include, but is not limited to, costs of representing the abductee and his or her family in this state and any other state in any action related to the abduction and returning of the abductee to this state, as well as travel expenses for returning the abductee to this state and reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(2) The award of attorney's fees shall be governed by the principles set forth in Section 15657.1.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.
Welfare and Institutions Code section 15610.06 provides: " 'Abduction' means the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, of any elder or dependent adult who does not have the capacity to consent to the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, as well as the removal from this state or the restraint from returning to this state, of any conservatee without the consent of the conservator or the court."
Civil Code section 3294(b) provides: "An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation."
"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], internal citations omitted.)
California Elder Law Litigation (Cont.Ed.Bar 2003-2005) § 2.68
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly, § 5.33 (Matthew Bender)
(Revised December 2005)