CACI 3107 Physical Abuse—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)

New September 2003; Revised June 2005, October 2008

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Give this instruction along with CACI No. 3106, Physical Abuse—Essential Factual Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs and damages for the decedent’s predeath pain and suffering. (See Welf. & Inst. Code, § 15657.)

If the individual responsible for the physical abuse is a defendant in the case, use “[name of individual defendant].” If only the individual’s employer is a defendant, use “[name of employer defendant]’s employee.”

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.

•Enhanced Remedies for Physical Abuse. Welfare and Institutions Code section 15657.

•“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 v. Baker (1999) 20 Cal.4th 23, 31–32 [82 Cal.Rptr.2d 610, 971 P.2d 986], 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.)

•“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].)

•“[I]f the neglect is ‘reckless[],’ or done with ‘oppression, fraud or malice,’ then the action falls within the scope of section 15657 and as such cannot be considered simply ‘based on … professional negligence’ within the meaning of section 15657.2. The use of such language in section 15657, and the explicit exclusion of ‘professional negligence’ in section 15657.2, make clear the Elder Abuse Act’s goal was to provide heightened remedies for, as stated in the legislative history, ‘acts of egregious abuse’ against elder and dependent adults, while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence. That only these egregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened ‘clear and convincing evidence’ standard.” (Delaney, supra, 20 Cal.4th at p. 35, internal citation omitted.)

•“ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as all 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.)