CACI 3109 Abduction—Essential Factual Elements (Welf. & Inst. Code, § 15610.06)
California Civil Jury Instructions CACI
3109 Abduction—Essential Factual Elements (Welf. & Inst. Code, § 15610.06)
[Name of plaintiff] claims that [[name of individual defendant]/ [and] [name of employer defendant]] abducted [him/her/nonbinary pronoun/[name of decedent]] in violation of the Elder Abuse and Dependent Adult Civil Protection Act. To establish this claim, [name of plaintiff] must prove all of the following:
1.That [[name of individual defendant]/[name of employer defendant]’s employee] [removed [name of plaintiff/decedent] from California and] restrained [him/her/nonbinary pronoun/[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 and] restraint;]
[or]
[That [[name of plaintiff/decedent]’s conservator/the court] did not consent to the [removal and] restraint;]
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/decedent]’s harm.
New September 2003; Revised December 2005, October 2008
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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 abduction, 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.
If the individual responsible for the abduction 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.
If the plaintiff seeks the enhanced remedies of attorney fees and costs, and in the case of a wrongful death, the decedent’s pain and suffering, give CACI No. 3110, Abduction—Enhanced Remedies Sought. (See Welf. & Inst. Code, § 15657.05.)
If the plaintiff is seeking enhanced remedies against the individual’s employer, also give either 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. To recover damages against the employer under a theory of vicarious liability, see instructions in the Vicarious Responsibility series (CACI No. 3700 et seq.).
The instructions in this series are not intended to cover every circumstance under which a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act.
Sources and Authority
•“Abduction” Defined. Welfare and Institutions Code section 15610.06.
•“Elder Abuse” Defined. Welfare and Institutions Code section 15610.07 provides:
•“Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
•“Elder” Defined. Welfare and Institutions Code section 15610.27.
•“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.)
•“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].)