CACI 3102A Employer Liability for Enhanced Remedies—Both Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))

California Civil Jury Instructions CACI

3102A Employer Liability for Enhanced Remedies—Both Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))

[Name of plaintiff] also claims that [name of employer defendant] is responsible for [attorney fees and costs/ [and] [name of decedent]’s pain and suffering before death]. To establish this claim, [name of plaintiff] must prove by clear and convincing evidence [insert one or more of the following four options:]

1.[That [name of individual defendant] was an officer, a director, or a managing agent of [name of employer defendant] acting on behalf of [name of defendant];] [or]

2.[That an officer, a director, or a managing agent of [name of employer defendant] had advance knowledge of the unfitness of [name of individual defendant] and employed [him/her/nonbinary pronoun] with a knowing disregard of the rights or safety of others;] [or]

3.[That an officer, a director, or a managing agent of [name of employer defendant] authorized [name of individual defendant]’s conduct;] [or]

4.[That an officer, a director, or a managing agent of [name of employer defendant] knew of [name of individual defendant]’s wrongful conduct and adopted or approved the conduct after it occurred.]

An employee is a “managing agent” if the employee exercises substantial independent authority and judgment in corporate decisionmaking such that the employee’s decisions ultimately determine corporate policy.

[If [name of plaintiff] proves the above, I will decide the amount of attorney fees and costs.]

Derived from former CACI No. 3102 October 2008; Revised April 2009, May 2020

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Directions for Use

This instruction should be given with CACI No. 3104 (neglect), CACI No. 3107 (physical abuse), or CACI No. 3110 (abduction) if the plaintiff is seeking the enhanced remedies of attorney fees and costs and/or damages for a decedent’s pain and suffering against an employer and the employee is also a defendant. (See Civ. Code, § 3294(b) Welf. & Inst. Code, §§ 15657(c), 15657.05.) If the employer is the only defendant, give CACI No. 3102B, Employer Liability for Enhanced Remedies—Employer Defendant Only. The requirements of Civil Code section 3294(b) need not be met in order to obtain enhanced remedies from an employer for financial abuse. (See Welf. & Inst. Code, § 15657.5(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

Enhanced Remedies for Physical Abuse, Neglect, or Abandonment. Welfare and Institutions Code section 15657.

Enhanced Remedies Against Employer Based on Acts of Employee. Welfare and Institutions Code section 15657.5(c).

Enhanced Remedies for Abduction. Welfare and Institutions Code section 15657.05.

Punitive Damages Against Employer. Civil Code section 3294(b).

“[A] finding of ratification of [agent’s] actions by [employer], and any other findings made under Civil Code section 3294, subdivision (b), must be made by clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)

“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].)

“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, supra, 20 Cal.4th at pp. 31–32, 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.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:67, 10:1 (The Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.41–6.44
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly, § 5.35 (Matthew Bender)