CACI 3110 Abduction—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657.05)

California Civil Jury Instructions CACI

3110 Abduction—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657.05)

[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and] damages for [name of decedent]’s pain and suffering]. To recover these remedies, [name of plaintiff] must prove all of the requirements for the abduction by clear and convincing evidence.

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

New September 2003; Revised December 2005, April 2008, October 2008

Crowdsource Lawyers

Directions for Use

Give this instruction along with CACI No. 3109, Abduction—Essential Factual Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs and/or damages for the decedent’s predeath pain and suffering. (See Welf. & Inst. Code, § 15657.05.)

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.

Sources and Authority

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

“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.)

“ ‘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.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 7:1-7:3 (The Rutter Group)