CACI 3100 Financial Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.30)

California Civil Jury Instructions CACI

3100 Financial Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.30)

[Name of plaintiff] claims that [[name of individual defendant]/ [and] [name of employer defendant]] violated the Elder Abuse and Dependent Adult Civil Protection Act by taking financial advantage of [him/her/nonbinary pronoun/[name of decedent]]. To establish this claim, [name of plaintiff] must prove that all of the following are more likely to be true than not true:

1.That [[name of individual defendant]/[name of employer defendant]’s employee] [insert one of the following:]

[[took/hid/appropriated/obtained/ [or] retained] [name of plaintiff/decedent]’s property;]


[assisted in [taking/hiding/appropriating/obtaining/ [or] retaining] [name of plaintiff/decedent]’s property;]

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 individual defendant]/[name of employer defendant]’s employee] [[took/hid/appropriated/obtained/ [or] retained]/assisted in [taking/hiding/appropriating/obtaining/ [or] retaining]] the property [for a wrongful use/ [or] with the intent to defraud/ [or] by undue influence];

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]’s harm.

[One way [name of plaintiff] can prove that [[name of individual defendant]/[name of employer defendant]’s employee] [took/hid/appropriated/obtained/ [or] retained] the property for a wrongful use is by proving that [[name of individual defendant]/[name of employer defendant]’s employee] knew or should have known that [his/her/nonbinary pronoun] conduct was likely to be harmful to [name of plaintiff/decedent].

[[[Name of individual defendant]/[Name of employer defendant]’s employee] [took/hid/appropriated/obtained/ [or] retained] the property if [name of plaintiff/decedent] was deprived of the property by an agreement, gift, will, [or] trust[, or] [specify other testamentary instrument] regardless of whether the property was held by [name of plaintiff/decedent] or by [his/her/nonbinary pronoun] representative.]

New September 2003; Revised June 2005, October 2008, April 2009, June 2010, December 2013, June 2014

Crowdsource Lawyers

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 financial abuse, 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. Plaintiffs who are suing for their decedent’s pain and suffering should also use CACI No. 3101, Financial Abuse—Decedent’s Pain and Suffering.

If the individual responsible for the financial abuse 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.

To recover compensatory damages, attorney fees, and costs against the employer under a theory of vicarious liability, see instructions in the Vicarious Responsibility series (CACI No. 3700 et seq.).

If “for a wrongful use” is selected in element 3, give the next-to-last optional paragraph on appropriate facts. This is not the exclusive manner of proving wrongful conduct under the statute. (See Welf. & Inst. Code, § 15610.30(b).)

If “by undue influence” is selected in element 3, also give CACI No. 3117, Financial Abuse—“Undue Influence” Explained.

Include the last optional paragraph if the elder was deprived of a property right by an agreement, donative transfer, or testamentary bequest. (See Welf. & Inst. Code, § 15610.30(c).)

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

Abuse of Elder or Dependent Adult. Welfare and Institutions Code section 15610.07.

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

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

“Financial Abuse” Defined. Welfare and Institutions Code section 15610.30.

“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].)

“The Legislature enacted the Act to protect elders by providing enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect. An elder is defined as ‘any person residing in this state, 65 years of age or older.’ The proscribed conduct includes financial abuse. The financial abuse provisions are, in part, premised on the Legislature’s belief that in addition to being subject to the general rules of contract, financial agreements entered into by elders should be subject to special scrutiny.” (Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 478 [177 Cal.Rptr.3d 320], internal citations omitted.)

“The probate court cited Welfare and Institutions Code section 15610.30 to impose financial elder abuse liability as to plaintiffs’ first cause of action for fiduciary abuse of an elder. This liability is supported by the court’s findings that ‘[decedent] did not know the extent of [defendant’s] spending,’ and that ‘[w]hile it is not uncommon for a spouse to spend money or purchase items of which the other is unaware, and the line between such conduct and financial abuse is not always clear, what [defendant] did in this case went well beyond the line of reasonable conduct and constituted financial abuse,’ and the court’s further conclusion that much of defendant’s credit card spending and writing herself checks from decedent’s bank account during the marriage amounted to financial abuse.” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1356 [167 Cal.Rptr.3d 50].)

“[T]he Legislature enacted the Act, including the provision prohibiting a taking by undue influence, to protect elderly individuals with limited or declining cognitive abilities from overreaching conduct that resulted in a deprivation of their property rights. To require the victim of financial elder abuse to wait to file suit until an agreement obtained through the statutorily proscribed conduct has been performed would not further that goal.” (Bounds, supra, 229 Cal.App.4th at p. 481.)

“When the [operable pleading] was filed, former section 15610.30, subdivision (a)(3) referred to the definition of undue influence found in Civil Code section 1575. However, in 2013, the Legislature amended section 15610.30, subdivision (a)(3) to refer, instead, to a broader definition of undue influence found in the newly enacted section 15610.70.” (Bounds, supra, 229 Cal.App.4th at p. 479.)

“[A] party may engage in elder abuse by misappropriating funds to which an elder is entitled under a contract.” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 656 [203 Cal.Rptr.3d 785].)

“[U]nder subdivision (b) of section 15610.30, wrongful conduct occurs only when the party who violates the contract actually knows that it is engaging in a harmful breach, or reasonably should be aware of the harmful breach.” (Paslay, supra, 248 Cal.App.4th at p. 658.)

“The text of section 15610.30 is broad. It speaks not only of ‘taking’ real or personal property, but also ‘secreting, appropriating, obtaining, or retaining’ such property, and then, to capture the sense of all of these terms, goes on to use the more expansive term ‘deprive[].’ Some of the terms used in section 15610.30 are narrower than others; to ‘secret,’ for example, suggests hiding or concealment, and to ‘retain’ or to ‘obtain’ suggests affirmatively acquiring possession of something. But we have no trouble concluding that the broadest of these terms—the word ‘deprive’—in its ordinary meaning covers what the [elders] have alleged. The trial court’s determination to the contrary relies heavily on the fact that the [elders] gifted (or intend to gift) whatever money or assets they transferred (or will transfer) to the Trust, but in our view this makes no difference. The Act, as amended in 2008, expressly contemplates that liability may flow from transfers made by ‘agreement, donative transfer, or testamentary bequest … .’ ” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 12 Cal.App.5th 442, 460 [218 Cal.Rptr.3d 808], internal citations omitted.)

“It is one thing to say that financial agreements entered into by elders should be ‘subject to special scrutiny’, but quite another to suggest, as [plaintiff] does, that a lender has duties to a borrower who resides in this state and is ‘65 years of age or older’ different from those it owes other borrowers.” (Hilliard v. Harbour (2017) 12 Cal.App.5th 1006, 1015 [219 Cal.Rptr.3d 613].)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 5:1, 7:2, 22:9–22:12 (The Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.23, 6.30–6.34
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders, § 5.33[4] (Matthew Bender)