58. Stebley v. Litton Loan Servicing (3d Dist.) 2011 WL 5975655

Dependent adult was foreclosed from home and thereafter sued for damages for violations of Civil Code § 2923.5 (delays filing notice of default for 30 days so that parties may consider alternatives to foreclosure) and financial abuse. The trial court sustained demurrers without leave to amend. In affirming the demurrers, the DCA noted both that it is not tortious for a lender to pursue its economic interests by foreclosure and that the financial abuse statute may be pre-empted by the Home Owners Loan Act (15 U.S.C. § 1641; “HOLA”).

57. DiGirolamo v. DiGirolamo (1st Dist.) 2011 WL 4381998

Plaintiff, an adult suffering from bipolar disorder, manic-depression, and schizophrenia, sued his mother and brother for breach of fiduciary duty, failure to distribute trust assets, financial abuse of a dependent adult, fraud and forgery. After a court trial, judgment was rendered in favor of plaintiff with an award of double damages pursuant to Probate Code 859. On appeal, brother contended, among other things, that the financial abuse count was barred by a three year statute of limitations. In rejecting this contention, the DCA observed that the statute of limitations to be applied is determined by the nature of the right sued upon, not by the form of the action or the relief demanded; that is, it is governed by the gravamen of the cause of action. The DCA decided that in this case, the gravamen of the financial abuse count was breach of fiduciary duty for which a four year period of limitations applies.

This analysis appears predicated on the view that financial abuse is not an independent cause of action since an examination of the gravamen of the cause of action would occur only if financial abuse were a form of action or relief and not a cause of action itself. While this somewhat stale issue continues to appear from time to time, it would appear that the statutory revisions of 2009 made reasonably clear that financial abuse is an independent cause of action and not merely an enhanced remedy. WIC 15657.5(a) now specifies that compensatory damages are recoverable where financial abuse is proven; moreover, WIC 15657.7 provides a four year statute of limitations for "[a]n action for damages pursuant to Sections 15657.5 and 15657.6 for financial abuse." Even before the statutory revisions of 2009, WIC 15657.01 provided that the provisional remedy of attachment is available "in any action for damages pursuant to Section 15657.5 for financial abuse."

56. Seigel v. Sonsino (2d Dist.) 2011 WL 4347856

Elder suffered from dementia; her niece was appointed conservator of the person, and plaintiff was appointed conservator of the estate. Elder died and niece was appointed administrator of elder’s estate. Thereafter, plaintiff succeeded niece as administrator and filed this action against niece for physical abuse and neglect, financial abuse, and a determination that niece was prohibited from inheriting pursuant to Probate Code 259. The financial abuse count was based upon the time and expenses that had previously been incurred to obtain an order removing niece as conservator of the person. Niece demurred to both counts, which the trial court sustained without leave to amend.

The DCA reversed the demurrer with regard to the physical abuse and neglect count. With regard to the financial abuse count, the DCA observed that in order to state a cause of action for financial abuse “the plaintiff must show the defendant took, secreted, appropriated or retained the elder's property, not simply that the defendant's misconduct caused financial harm or economic loss.” While incurring attorney’s fees as a result of a defendant’s wrongful conduct may be an element of damages, the incurring of such expenses does not itself constitute the taking of property within the meaning of the financial abuse definition. The sustaining of the demurrer to the financial abuse count was therefore affirmed.

55. In re Jones (3d Dist.) 2011 WL 3911036

Grandson was trustee of elder’s trust from which he allegedly wrongfully took property. A conservator was appointed for elder who then filed a petition in the probate court entitled “PETITION FOR REMOVAL OF TRUSTEE; FOR RETURN OF TRUST ASSETS; FOR FRAUD; CONVERSION AND ELDER ABUSE; [and] FOR AN ACCOUNTING.” After a bench trial, the court removed grandson as trustee, found that grandson had committed elder financial abuse, and awarded attorney’s fees. Grandson appealed.

Grandson, in propria persona, raised various defects on appeal, all of which the DCA found to be unmeritorious, including that the probate court had denied grandson his right to a jury trial. In affirming the decision, the DCA noted that no right to a jury trial is permitted under the Probate Code’s trust administration statutes, citing Probate Code 17006. However, the DCA also affirmed the finding of financial abuse pursuant to WIC 15610.30 and the award of attorney’s fees pursuant to WIC 15657.5. While it is clear that no right to a jury exists for probate procedures relating to the internal administration of a trust, a finding of financial abuse and the awarding of damages and attorney’s fees pursuant to WIC 15657.5 is presumably a legal cause for which the right to a jury should exist. Moreover, it is unclear why the legal counts of fraud and conversion were not severed from the probate petition and transferred to a general civil department.

54. Estate of Dito (1st Dist.) 2011 WL 3240832

Live-in housekeeper worked for elderly and physically impaired husband and wife. Wife died and housekeeper continued to care for husband, and after several years, housekeeper married husband. At the time of the marriage, housekeeper was 28 and husband was 94. A prenuptial agreement provided that both parties waived their right to alimony, maintenance, or spousal support in the event of death or dissolution of marriage. Husband died and housekeeper filed a petition to administer estate; husband’s daughter filed a competing petition to administer and to admit husband’s will to probate. This pour-over will recited that husband was married to wife and did not mention housekeeper. Thereafter, housekeeper filed a petition seeking a share of husband’s estate as an omitted spouse and a determination that the prenuptial agreement was unenforceable. The parties stipulated to bifurcation and that the court would first decide whether housekeeper was entitled to a share of the estate as an omitted spouse and whether the prenuptial agreement was enforceable. The trial court decided both issues in favor of the housekeeper and the DCA affirmed. Thereafter, the daughter filed a new petition asserting that the housekeeper was not entitled to a share of the estate pursuant to Probate Code § 21611(b) because husband had intended and did provide for housekeeper outside of the testamentary estate. The trial court denied this petition, ruling that the housekeeper’s entitlement to a share of the estate had already been decided in the prior adjudication and was therefore res judicata. Daughter then filed yet another petition asserting that housekeeper had committed elder financial abuse and must be characterized to have pre-deceased husband pursuant to Probate Code § 259. Housekeeper demurred asserting, among other things, res judicata, lack of standing, and failure to state a cause of action. The trial court sustained the demurrer without leave to amend based solely on res judicata. Daughter appealed.

53. Cooper v. Leeper (2d Dist.) 2011 WL 1886897

Elder hired lawyer to quiet title to her residence pursuant to an ambiguous contingent fee agreement that included a deed of trust securing lawyer’s fee. Lawyer succeeded in quieting title and thereafter foreclosed on his deed of trust. Elder filed a bankruptcy petition and lawyer’s claim was allowed. The property was sold and lawyer received the contingent fee. Thereafter, elder filed an action against lawyer for financial abuse and related claims. Notwithstanding the bankruptcy court’s adjudication of lawyer’s claim, the trial court found that lawyer’s quest for an excessive fee constituted the taking of property for a wrongful use. The DCA affirmed.

52. Reed v. Wells Fargo Bank (N.D. Cal.) 2011 WL 1793340

Elderly plaintiffs filed suit to enjoin foreclosures alleging abusive mortgage practices and asserting claims for elder financial abuse. In denying defendant’s motion to dismiss the financial abuse count, the court rejected defendant’s contention that a relationship of trust was a predicate to such an action and recognized that a financial abuse claim could be asserted against a mortgage broker for making false statements about refinancing terms or against an insurer who used deceptive practices. After balancing the hardships, the court enjoined foreclosure pending further proceedings.

51. Hickerson v. Financial Freedom Senior Funding (2nd Dist.) 2011 WL 1587730

In 2005, an elderly couple in which the husband suffered from terminal cancer and the wife suffered from Alzheimer’s disease, was sold a reverse mortgage by defendant. Plaintiffs filed an action alleging various counts, including elder financial abuse. The trial court granted defendant’s motion for summary judgment on the financial abuse count and plaintiffs appealed. Although the allegedly actionable conduct occurred well before January 1, 2009, the DCA applied the current statute without discussing whether the revisions were retroactive. In affirming the granting of the summary judgment motion, the DCA considered whether plaintiffs’ evidence supported the contention that defendant knew or should have known that the conduct was likely to be harmful to the elders. It found that an opinion that it would be “foolish” to sell a reverse mortgage to an elder who was dying or highly likely to be institutionalized did not support a finding that the defendant was aware of plaintiffs’ conditions. Furthermore, the DCA found that an opinion that it “wouldn’t have been difficult for a non-clinical person to assess [the wife] as being impaired” also failed to support a conclusion that the sale of a reverse mortgage was likely to be harmful.

This decision is noteworthy because it is the first instance in which an appellate court has considered the meaning of the new standard “knew or should have known that this conduct is likely to be harmful to the elder.” While evidence was offered that the husband's terminal illness rendered the reverse mortgage "harmful," plaintiffs may very well have failed to support the contention that defendant actually knew of his condition. However, it is unclear whether either the trial court or the DCA considered whether defendant "should have known" of his condition. It is of course common knowledge that elders suffer from serious medical conditions in higher proportions than the general population. Where a serious illness makes it unlikely that the elder will be able to continue living at home, a reverse mortgage may be financially catastrophic because after 12 months the reverse mortgage comes due; moreover, any net proceeds of sale will likely make the elder ineligible for Medi-Cal long term care benefits. Since this is an important consideration in determining whether a reverse mortgage might be harmful to an elder, a reverse mortgage broker may very well have a duty to inquire as to the elder's health. The existence of a duty is of course a matter of law. Here it seems that the court should have considered whether the mortgage broker had a duty to inquire as to the elders' health and thereby "should have known" of the husband's terminal illness. If so, any breach of that duty would have been a question of fact and here seems sufficiently supported to defeat the motion for summary judgment. With regard to the wife's dementia, evidence was submitted that the defendant should have recognized her impairment. The issue of whether that impairment would render the reverse mortgage harmful would similarly be a question of fact. While plaintiffs offered evidence that it would be foolish to sell a reverse mortgage to an elder who is likely to be institutionalized, it is unclear whether plaintiffs properly supported the contention that the wife was likely to be institutionalized.

50. Hardin v. Wal-Mart Stores, Inc. (E.D. Cal.) 2011 WL 1566023

Plaintiff, an employee of defendant Wal-Mart, filed suit alleging financial abuse arising out of defendant’s refusal to permit plaintiff to work additional hours. The trial court granted defendant’s motion to dismiss, observing: “Plaintiff is not alleging that he was not paid for hours worked, but rather wages he would have earned if he had more hours. Cal. Welf. & Inst.Code § 15610.30 references ‘real or personal property.’ Under general California law, ‘The words “real property” are coextensive with lands, tenements, and hereditaments’ and ‘The words “personal property” include money, goods, chattels, things in action, and evidences of debt.’ Cal. Civ.Code § 14. Plaintiff's allegations do not qualify as either.”

49. McIntosh v. Mathison (1st Dist.) 2011 WL 1535401

In 2003, elder created an estate plan that divided all of her property equally between her children. Thereafter, the elder had a disagreement with her daughter and revised her estate plan to reduce the daughter’s share. Several years later, the elder and daughter re-established friendly relations and the elder revised her estate plan to again divide her estate equally between all children. In 2008, a son became disgruntled about the most recent change and persuaded the elder to again revise her estate plan to reduce the share of the daughter. The elder died and the daughter contested the most recent estate plan on the basis of undue influence and financial abuse. The trial court determined that the son had employed undue influence in obtaining the revocation of the previous plan and invalidated the most recent plan. The court also found elder financial abuse and awarded attorney’s fees to the daughter. On appeal, the DCA upheld the trial court’s findings as to undue influence. However, it reversed the award of attorney’s fees on the financial abuse claim, holding that the statutory changes effective January 1, 2009 were not retroactive and therefore at the time of the events in this case, undue influence was not a basis of financial abuse.

48. Estate of Kahanabetian (2nd Dist.) 2011 WL 989241

Elder’s sole relatives were six distant cousins. Four days before her death, elder executed a will leaving her entire estate to one cousin only. That cousin petitioned to probate the will and was appointed executrix. After the expiration of the time to contest the will, another cousin (petitioner) sought to invalidate the will on the basis of undue influence. Executrix’s demurrer to the petition on the grounds that the petition was not timely was sustained. Thereafter, petitioner filed a second petition (in the same probate action) alleging similar facts and asserting, among other things, a cause of action for elder financial abuse; the petition also alleged that during the elder’s lifetime, the executrix had wrongfully taken items of the elder’s personal property. The executrix’s demurrer to this petition was sustained as to all issues concerning the validity of the will. However, the court found that petitioner could proceed with respect to the claim that property of the elder had been converted during the elder’s lifetime, and petitioner was given leave to amend. Petitioner did not amend and elected to appeal.

47. Bell v. Bunch (6th Dist.) 2011 WL 288476

Non-elder sought to buy a townhouse but was not creditworthy, and therefore a loan was obtained in the names of his elderly parent, and title to the property was placed in parent’s name only. Parent contributed no money to the purchase nor maintenance of the property, and all acknowledged that parent held only nominal title without any financial interest in the property. Thereafter, parent transferred title to the property into trust. Defendant induced parent to sell him the townhouse at a grossly undervalued price and numerous complaints, cross-complaints, amendments, and dismissals followed, including a count for elder financial abuse brought by the parent. A portion of the judgment was rendered in favor of parent on the elder financial abuse count and defendant appealed, contending that no property of an elder had been taken because the elder held only “naked title” without any beneficial interest. In affirming the judgment, the DCA stated: “In sum, the phrase ‘property of an elder’ as used in Welfare and Institutions Code section 15610.30, subdivision (a)(1) is clear and is so broad as to encompass a legal interest in property held by an elder and even bare legal title. The Legislature did not limit the phrase to mean only property in which the elder has a beneficial or equitable interest. And construing the statute as we do comports with the remedial and protective purpose of the Act, which with respect to financial abuse is to protect the elder's assets from being drained.”

The facts of this case are quite complex and could be construed to find some economic interest of the elder adversely affected by the defendant’s conduct. If so, the taking of such property, either directly or indirectly, would obviously fall within the protection of the statute. However, it is unclear how public policy is promoted by characterizing as elder financial abuse the taking of only an elder’s nominal title and where no asset of the elder has been "drained." Presumably, damages are a necessary element of financial abuse and where title is nominal only no such damages exist.

46. McQueen v. Drumgoogle (1st Dist. 2011) 2011 WL 117653

Physically and mentally disabled elder received a life estate in the family home pursuant to the trust of elder’s deceased father. Thereafter, elder’s declining condition required her to move from the family home to a skilled nursing facility, the fees for which were at least partially paid by SSI and Medi-Cal benefits. With the assistance of an attorney, trustee sold the family home and disbursed proceeds to himself and others and the elder received nothing. A conservator was appointed for the elder, who then commenced an action for elder financial abuse and related counts. At trial, defendants contended that any disbursement of the proceeds of sale to the elder would have reduced or eliminated the elder’s eligibility for government benefits and therefore must be offset against any damages. The trial court declined to so instruct the jury, ruling that such benefits constituted collateral source. The jury found in favor of elder and awarded compensatory damages of $99,900; the court then awarded attorney’s fees of $320,748 on the elder financial abuse count.

On appeal, defendants argued, among other things, that the trial court erred in applying the collateral source rule to the receipt of SSI and Medi-Cal benefits. The DCA disagreed, ruling that the public policy which encourages victims to secure independent protection against such losses justifies characterizing public benefits as collateral source. The Supreme Court denied review and ordered the decision de-published.

45. Steinbach v. Thomas (1st Dist.) 2011 WL 96394

Elder devised his estate to his granddaughter. Shortly before his death, elder sold his home to a friend of many years. Following elder’s death, granddaughter commenced an action against elder’s friend claiming that the purchase price was so low that the transaction constituted financial abuse. Following a bench trial, the court found that there was no evidence that the elder was unable to handle his affairs, that the evidence suggested that the elder might very well feel generously inclined to the friend because of her many years of friendship and support, and that in any event the purchase price paid was fairly reflective of the value of the house, which was seriously dilapidated. Accordingly, the trial court ruled that the transaction did not constitute financial abuse.

On appeal the DCA affirmed, ruling that there was substantial evidence to support the decision. (It is interesting to note that the evidence apparently showed that the friend took the elder to meals every week, drove him to doctor’s appointments, took him for rides in the car, brought him groceries, took him on errands, and provided other services that arguably constituted “social services” pursuant to WIC § 15610.17(y) and therefore might have rendered the transaction subject to the presumption of Probate Code § 21350. Of course, the transaction was not wholly donative – only perhaps that portion that the plaintiff claimed was far below market value. In any event, the plaintiff apparently did not plead or argue this issue.)

44. Raicevic v. Lopez (4th Dist.) 2010 WL 3248335

Elders sold real property to defendants and carried back a loan secured by the property. Thereafter, defendants proposed to substitute as collateral personal property in place of the real property and hired lawyers to represent them. Lawyers prepared an allegedly defective pledge agreement that was accepted by elders. Defendants defaulted on the loan, and elders sued defendants and lawyers, stating causes of action for elder financial abuse, fraud, negligent misrepresentation, and malpractice. The trial court granted summary judgment and elders appealed. In considering the elder financial abuse claim, the DCA noted that the law is unsettled as to whether financial abuse is an independent cause of action or must be based on “the existence of a predicate tort.” (On this issue, the court’s reference in footnote 2 to WIC 15610.07 is misleading; see comment to Persuasive Authority case digest 15, Bellue v. Young-Bellue (4th Dist. 2006) 2006 WL 1660536, below.) Since the court found triable issues of fact at least as to fraud and negligent misrepresentation, it was able to avoid this issue because in any event a predicate tort had been properly pleaded. Summary judgment as to these counts was therefore reversed.

43. Porco v. Helm (2d Dist.) 2010 WL 1951781

Daughter was trustee of elderly father's trust and took various trust property for her own use. After father's death, sons filed probate petition against daughter seeking to remove her as trustee and recover damages. In their petition, sons requested “such attorney's fees as may be allowable by law,” and in their motion for judgment, they requested attorney's fees pursuant to W&I Code 15657.5. The probate court granted the petition and awarded attorney's fees. On appeal, the DCA affirmed stating that where a party allows a case to be tried on the assumption that certain issues are raised by the pleadings, she may not assert otherwise on appeal.

42. Stark v. Stark (E.D. Cal.) 2009 WL 3162250

Plaintiffs filed a probate petition against trustee seeking to compel an accounting, remove the trustee, and alleging elder financial abuse. Trustee failed to respond to the petition, a default hearing was held, and the court found trustee guilty of elder financial abuse. Thereafter, trustee filed a chapter 11 bankruptcy petition, and plaintiffs filed a complaint seeking a determination that the probate judgment was a nondischargeable debt under 11 USC § 523(a)(4). Plaintiffs then moved for summary judgment, arguing that the bankruptcy court was bound by the probate court’s factual determinations under the doctrine of collateral estoppel. The bankruptcy court granted the motion and trustee appealed. The District Court applied the Rooker-Feldman doctrine precluding a lower federal court’s review of a state court determination and found that under California law, all of the requirements of applying collateral estoppel were met by the probate court’s decision. The judgment was therefore affirmed.

41. Guerard v. CNA Financial Corp. (N.D.Cal.) 2009 WL 3152055

Elder purchased a long term care policy from an insurer. Elder died and her representative filed suit claiming that the elder had been denied benefits for home health care services provided by the elder’s relatives. The complaint pleaded, among other things, a cause of action for “Financial, Mental and Physical Elder Abuse--Welf. & Inst.Code s 15610.30.” In granting defendants’ motion to dismiss, the court stated that there exists “no separate cause of action for abuse under the Elder Abuse Act. The Act merely creates an additional remedy under certain, specifically delineated circumstances,” citing Berkeley v. Dowds (2007) 152 Cal.App.4th 518, ARA Living Centers v. Superior Court (1993) 18 Cal.App.4th (1993) 1556, and Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771.

40. Consumer Solutions v. Hillery (N.D. Cal.) 2009 WL 2711264

Hillery, an elder, refinanced her home and served notice of rescission claiming violations of various federal lending laws. Lenders ignored the rescission notice and instituted non-judicial foreclosure. Thereafter, lenders filed suit, and the elder counter-complained for elder financial abuse and other counts. Lenders moved to dismiss on various bases. In dismissing the elder financial abuse count, the court ruled that as alleged in the counter-complaint, the foreclosure efforts of lenders were privileged pursuant to CC sections 47 and 2924(d).

39. Rand v. American National Ins. Co. (N.D. Cal.) 2009 WL 2252115

Plaintiff filed a class action against insurer, who marketed deferred annuities to elders, pursuant to B & P §§ 17200 and 17500 (UCL) and for elder financial abuse. The UCL count was based, in part, on alleged violations of Ins. Code §§ 330 et seq., 780 et seq., and 785 et seq., the CLRA (CC § 1770 et seq.), and elder financial abuse. Defendant moved to dismiss the entire UCL count on the basis of Maradi-Shalal (1988) 46 Cal.3d 287 and its progeny. The court denied the motion because the complaint did not allege unfair claims settlement practices, but rather alleged unfair acts in marketing insurance. However with regard to the UCL count based upon violations of the CLRA, the court granted the motion because annuities are not tangible goods nor were any services provided. With regard to the UCL based on financial abuse, defendant argued that elder financial abuse does not constitute an independent cause of action and therefore cannot support a UCL claim. The court rejected this argument, citing numerous decisions which recognize elder financial abuse as an independent cause of action. On the direct elder financial abuse count, defendant argued that a three year statute of limitations barred plaintiff’s action and that financial abuse requires the same heightened pleading as fraud. The court side-stepped both of these issues by deciding that whether plaintiff should have discovered the financial abuse facts within the applicable period was a question of fact and that the allegations of the complaint were sufficient as pled.

38. Clark v. Clark (1st Dist.) 2009 WL 1863897

Mother, an elder, agreed to allow daughter to live in a residence owned by mother but placed various conditions on the daughter’s right to live there. Daughter moved some of her personal property into the house and occasionally slept and ate there. Thereafter, daughter printed announcements disparaging her mother which she mailed to her mother’s acquaintances, posted on the house and on public property, and placed on the windshields of cars parked at the mother’s church; the daughter also failed to comply with the conditions imposed by the mother for living in the house. Mother demanded that the daughter vacate the house and sought to exclude her by changing the locks, but daughter had the locks again changed. Daughter then recorded several mechanics’ liens against the property and then filed an action for quiet title claiming a life estate in the mother’s house and asserting other counts for damages against the mother. Mother cross-complained for elder financial abuse and related counts, including intentional infliction of emotional distress. At trial, the jury found in favor of the mother on the elder financial abuse claim, awarded compensatory damages on the IIED claim, and awarded punitive damages. Following the verdict, the trial judge awarded the mother attorney’s fees on the financial abuse claim but denied her request for a protective order. Following entry of judgment, the daughter moved for JNOV. The trial judge granted the JNOV and set aside the jury’s finding of financial abuse and vacated the IIED damages and punitive damages. Mother appealed the granting of the JNOV.

37. Stanhope v. Eagleton (4th Dist.) 2009 WL 1486669

Elder died leaving assets in a trust for which her daughter was trustee. The daughter then sued her brother for elder financial abuse and related counts alleging that the brother had wrongfully taken property from the mother prior to her death. After a bench trial, the trial court ruled in favor of the brother and against the sister on all issues. In affirming the decision, the DCA recognized that the Legislature had several times revised the elder financial abuse statute but observed: “It appears undisputed, however, that each of these versions required not only that the defendant obtain some money or property of the elder, but also that the defendant do so wrongfully. The wrongfulness element can be satisfied by fraud, constructive fraud, undue influence, embezzlement, or conversion.” It then recognized some ambiguity in the pre-2009 statute and stated: ”Leaving aside for the moment the precise limits of this statutory language, it cannot be understood to encompass a transaction that is in no way wrongful--e.g., one to which the elder knowingly and voluntarily consents or one that is in the elder's best interests.”

The DCA’s observation that to constitute financial abuse the taking of an elder’s property must be “wrongful” is probably sound. However, the subsequent dicta that a transaction to which an elder knowingly and voluntarily consents cannot be wrongful is inconsistent with the 2009 revision, which defines wrongful use (among other things) as the taking of property of an elder where the person “knew or should have known that this conduct is likely to be harmful to the elder.” Thus this facet of wrongful use focuses entirely on the defendant’s conduct and state of mind; whether the elder knowingly and voluntarily consented to the “harmful” transaction is immaterial.

36. La Baw v. Campbell (4th Dist.) 2009 WL 325547

Elderly plaintiff sued attorney for conversion, elder financial abuse, and related counts. A jury returned a verdict for plaintiff on all counts and awarded compensatory and punitive damages. On appeal, the DCA found sufficient evidence to support the verdict for conversion. In also upholding the verdict for financial abuse, the court stated: "Based on our conclusion that [defendant] was guilty of conversion and the undisputed evidence that [plaintiff] was an elder, there was substantial evidence of financial elder abuse." Thus, this decision suggests that whenever the property of an elder is converted, elder financial abuse occurs.

35. Cosio v. Simental (C.D. Cal.) 2009 WL 201827

Two plaintiffs, both elderly widows, filed a state court action against a lender and broker after they were persuaded to refinance loans on their homes which they alleged were complicated, risky, and oppressive. The complaint alleged elder financial abuse in addition to other counts. The action was removed to federal district court. Thereafter, the lender defendant moved to dismiss the financial abuse count asserting that it is preempted by the Home Owners Loan Act (HOLA), 15 U.S.C. § 1641 and its preemptive implementing regulations imposed by the Office of Thrift Supervision (OTS) at 12 C.F.R. § 560.2. In granting the defendant’s motion, the court stated that where “a plaintiff alleges conduct that touches upon a defendant’s lending practices, operations, and charges,” HOLA preempts an action for elder financial abuse.

34. Mariani v. Kielbasa  (2d Dist.) 2008 WL 4837567

Ina, an elderly widow, moved from her long-time home to reside in the home of Arlene, one of her daughters. Thereafter, Arlene's daughter, Katherine, moved into Ina's home where she paid no rent. Katherine later purchased Ina's home for substantially less than its value. Ina died. Another daughter, plaintiff, individually and as executor of Ina's estate, filed suit for elder financial abuse and sought an order directing the reconveyance of the property pursuant to Probate Code § 850 et seq. A jury found in favor of defendants on the financial abuse count. Thereafter, the judge found that the property had been purchased through undue influence and ordered its reconveyance. Both parties appealed. In affirming the decision, the DCA noted that the requirements for establishing undue influence and the elements for proving financial abuse were different and that there was nothing inconsistent between the findings of the jury and the judge.

33. Labrador v. Seattle Mortgage Company  (N.D. Cal.) 2008 WL 4775239

Broker sold elderly plaintiff a reverse mortgage funded by defendant, and defendant paid broker a "correspondent fee." The court denied, in part, defendant's motion to dismiss deciding that the complaint sufficiently alleged a violation of federal lending regulations. In ruling on the motion to dismiss plaintiff's cause of action for elder financial abuse, the court recognized that financial abuse is an independent cause of action.

32. Hammermueller v. North American Company (4th Dist.) 2008 WL 4684773

In 2002, plaintiff, an elder suffering from advanced dementia, was sold a deferred annuity by an independent life agent on behalf of insurer NAC. Plaintiff filed suit against NAC asserting causes of action for fraud, negligent misrepresentation, and elder abuse. Some time after service, NAC returned plaintiff’s money, along with accrued interest. Plaintiff nevertheless pursued the action to jury trial to recover damages for emotional distress and attorney’s fees. The jury found in favor of plaintiff on all three causes of action and awarded him $4.5 million for non-economic injury, including emotional distress, and punitive damages of $14 million. The award was reduced to $8 million by remittitur. The trial court also awarded $1 million in attorney’s fees. On appeal, NAC argued that plaintiff had failed to present any evidence that he had suffered actual physical injury or financial loss, and therefore he was not entitled to recover compensatory damages for non-economic injury. The DCA agreed and reversed the judgment. In doing so, it based its decision, in part, upon the view that the elder abuse statute does not create a new independent theory of liability under which plaintiff may recover damages; rather, when proven it merely permits the recovery of additional, or enhanced, remedies. Since fraud and negligent misrepresentation require that a plaintiff sustain actual damages and no evidence in support of actual damages was presented, plaintiff is not entitled to any recovery for fraud or negligent misrepresentation, and therefore the enhanced remedies of financial abuse are unavailable.

The reasoning of this decision is questionable on several bases. First, it appears that the plaintiff did introduce evidence of physical injury and pecuniary loss in the form of a doctor’s visit and the payment of a surrender penalty upon termination of the annuity. It is peculiar that the DCA refers to this evidence in its decision but then implicitly rejects it as constituting evidence of actual economic loss. Second, even prior to the 2004 revisions, the more compelling interpretation is that elder financial abuse constituted an independent cause of action. The Hammermueller decision relies on broad statements in Delaney that notes the Legislature’s purpose in authorizing the recovery of attorney’s fees for elder abuse was to encourage attorneys to take abuse cases. While Hammermueller recognizes that Delaney was a physical abuse case, it nevertheless applies this broad statement to financial abuse as well. However, there are important distinctions between physical abuse and financial abuse. Significantly, the conduct which would give rise to a claim for physical abuse or neglect will always constitute actionable conduct under some other theory of liability, such as battery, negligence, or malpractice. Such theories authorize the recovery of compensatory damages; where the victim is an elder and the conduct is particularly egregious and may be characterized as recklessness, oppression, fraud, or malice, W & I Code § 15657 enhances the underlying compensatory damages by imposing attorney’s fees. The justification for the enhancement is of course to encourage attorneys to take egregious cases which rise to the level of abuse. Prior to 1998, this reasoning applied equally to the taking of an elder's property. Before 1998, the statute defined the conduct in terms of "fiduciary abuse" and not "financial abuse"; that is, it applied to the taking of an elder's property by a person "who has the care or custody of, or who stands in a position of trust to" an elder. Just as in physical abuse, the wrongful taking of property by a fiduciary always constituted an underlying cause of action, that is for breach of fiduciary duty. And under EADACPA, where such conduct is particularly egregious and may be characterized as recklessness, oppression, fraud, or malice, W & I Code § 15657 enhanced the underlying compensatory damages for breach of fiduciary duty by imposing mandatory attorney’s fees. However, when the Legislature broadened the definition from fiduciaries to any person, conduct which might satisfy the statutory definition no longer necessarily constituted actionable conduct for breach of fiduciary duty, or for that matter, liability under any other theory. For example, W & I Code § 15610.30 includes in the definition of financial abuse the taking of property of an elder with the intent to defraud. A necessary element of fraud is justifiable reliance.  Thus, where the elder’s reliance on a perpetrator’s misrepresentation is unreasonable, a cause of action for fraud will fail. However, reliance is not considered in the definition of financial abuse, and the statutory definition of financial abuse will nevertheless be satisfied. The broad policy statements in Delaney that imply that elder abuse may not be an independent cause of action were probably sound at the time; however, they would be inapplicable to financial abuse following the 1998 revisions. Similarly broad statements in later physical abuse cases like in Berkeley v. Dowds (2007) 152 Cal.App.4th 518 would seemingly apply to physical abuse but not to financial abuse. Moreover, since the imposition of attorney’s fees pursuant to W & I Code § 15657 is mandatory, where a plaintiff proves abuse, the court must award attorney's fees. For physical abuse, this requirement is not problematic because proof of physical abuse will always constitute proof of some underlying wrong for which compensatory damages may be awarded. But since the statutory definition of financial abuse may be satisfied by conduct which does not necessarily satisfy the requirements of any other theory of recovery, imposing mandatory attorney's fees would make little sense if financial abuse were not an independent cause of action. It is doubtful that the Legislature sought to encourage attorneys to take cases for which there is no remedy other than an award of attorney's fees.

A fair number of unpublished decisions have either explicitly or implicitly recognized that financial abuse is an independent cause of action. (See infra.) In addition, two recent legislative revisions strongly support this view. W & I Code § 15657.01 (enacted in 2007) provides: “[A]n attachment may be issued in any action for damages pursuant to Section 15657.5 for financial abuse of an elder or dependent adult, as defined in Section 15610.30.” (Emphasis added.) Further, Senate Bill 1140 (2008) clarified that a plaintiff is entitled to recover compensatory damages when proving financial abuse. (W & I Code § 15657.5(a).) It also specifies a four year statute of limitations based on an “action for damages pursuant to Sections 15657.5 and 15657.6 for financial abuse of an elder or dependent adult, as defined in Section 15610.30.” Not only is the statutory language now clear that an "action for damages" for financial abuse is authorized, but if financial abuse were not an independent cause of action, it would make little sense to provide a period of limitations within which to bring it.

31. Sakai v. Merrill Lynch (N.D.Cal.) 2008 WL 4193058

Plaintiff claimed that he was improperly encouraged to exchange a fixed annuity for a variable annuity and thereafter to allow the contract to annuitize. The complaint stated counts for breach of fiduciary duty, elder financial abuse, and violation of the unfair competition law. Defendants moved for summary judgment. On the breach of fiduciary duty count, the court denied the motion based on the declarations of plaintiff’s experts. The ruling provides a useful review of fiduciary duty in the context of the broker-customer relationship. On the elder financial abuse count, the court similarly denied the motion, finding that the evidence of “inappropriate recommendations made as a result of professional negligence or a conflict of interest” were sufficient to raise a triable issue as to whether those recommendations constituted a “wrongful use.” In rejecting defendants’ argument that elder abuse requires egregious acts of abuse beyond mere negligence, the court stated: “Assuming ‘wrongful use’ . . . requires something more than negligence, the declarations of plaintiff's experts, taken together, are sufficient to raise a triable issue as to [broker’s] liability in that regard. ‘Egregiousness,’ however, is a characterization that has been applied only in the context of physical abuse or neglect by health care providers.” (Id. at page 5.) The court also denied the motion on the UCL, stating that it was derivative of plaintiff's claims for breach of fiduciary duty and elder abuse. The court rejected defendants’ claim that the alleged damages were speculative and provided a brief discussion of potential damages in an annuities context. The court did distinguish between the potential liability for damages of the broker and that of the broker’s employer by recognizing the effect of the limitation imposed by W & I Code § 15657.5(b)(2).

30. Vilchez v. Seville Properties (2d Dist.) 2008 WL 3877688

Plaintiff, conservator of an elder and dependent adult, filed an action for elder financial abuse against a real estate broker and its sales agents, apparently based on misrepresentations as to the value of a property sold, the elder’s lack of capacity, and breach of fiduciary duty. After a bench trial, the court found in favor of plaintiff and awarded damages and attorney’s fees against both the broker and the sales agents. On appeal, the broker argued that the award of attorney’s fees was improper. In denying the appeal, the DCA stated: “[The broker’s] liability for attorney’s fees under the Elder Abuse Act is vicarious only to the extent that he is liable for his actions in hiring or controlling [the sales agents], in ratifying the offense or in acting with oppression, fraud or malice himself.  It is not vicarious in the sense that [the broker] is liable for the wrongful conduct of [the sales agents].” The DCA approved the trial court’s findings that the broker knowingly engaged in intentional wrongful conduct and ratified the sales agents’ conduct. While its reasoning is not specifically explained, the DCA’s requirement that an employer must engage in wrongful conduct before EADACPA attorney’s fees may be assessed would seemingly be based upon W & I § 15657.5(b) which provides that the standards set forth in CC § 3294(b) must be satisfied before “any damages or attorney’s fees” may be imposed against an employer.

29. Putman v. Schroeder (4th Dist.) 2008 WL 2461805

A lawyer who was also an elder sued his client for unpaid fees and included a count for elder financial abuse. At the conclusion of opening statements, the trial judge granted nonsuit as to the elder financial abuse count and thereafter, the jury returned a verdict in favor of the lawyer notwithstanding evidence that the lawyer had falsified the bills. The trial judge granted defendant a new trial based upon a finding that the lawyer had committed criminal acts by intentionally overbilling the defendant and reported the lawyer to the State Bar. The lawyer appealed. The DCA affirmed the granting of nonsuit as to the financial abuse count, stating: “The cause of action for elder abuse borders on the frivolous. Elder abuse statutes were never intended to apply to professionals seeking to collect on an unpaid bill. Reading the words ‘personal property’ in Welfare and Institutions Code section 15610.30 to include unpaid bills from professionals over 65 is patently unreasonable. Besides which, such a reading would be unconstitutional as well-differentiating between a dentist who is 64 years old and a dentist who is 66 years as to ability to collect unpaid bills wouldn't pass the rational basis test. And in enacting a statutory scheme to protect elderly, vulnerable people from being taken advantage of by, among other persons, their own attorneys, the Legislature most certainly never intended to give attorneys over 65 a big stick in prosaic collection work.” (Emphasis in original.)

28. Oshiro v. ANMC (4th Dist.) 2008 WL 2082140

Plaintiff, an elder, transferred money to defendant ANMC, a church. Thereafter, the parties’ relationship deteriorated, and plaintiff sued defendant for various causes of action including elder financial abuse. At trial, the court determined that the transfer had been a gift and entered judgment in favor of defendant on all counts. In affirming the judgment, the DCA rejected plaintiff’s claim that the trial court had applied an improper standard in determining whether defendant’s conduct constituted financial abuse. In doing so, it quoted from Berkley v. Dowds (2007) 152 Cal.App.4th 518, 529: “The Act ‘does not create a cause of action as such, but provides for attorney fees, costs, and punitive damages under certain conditions.’” Berkley was a case involving allegations of physical abuse and not financial abuse. While physical abuse and neglect may not be independent causes of action, there is strong justification for characterizing financial abuse as an independent cause of action. This view is not only recognized by prior appellate decisions, but is so characterized by the Legislature in W & I Code § 15657.03, which provides that attachment is available “in any action for damages pursuant to Section 15657.5 for financial abuse of an elder or dependent adult, as defined in Section 15610.30.”

27. Zimmer v. Nawabi (E.D. Cal. 2008) 566 F.Supp.2d 1025

A loan broker induced an elder to refinance her home by making various false statements about the terms of the loan. Elder filed suit against brokerage and its employees alleging breach of contract, breach of fiduciary duty, and elder financial abuse. Plaintiff moved for summary judgment and defendants failed to provide any evidence in opposition. The court denied the motion on the breach of contract count but granted it as to the breach of fiduciary duty and elder financial abuse counts. In considering the financial abuse count, the court first observed that the purpose of EADACPA is “to protect elders by providing enhanced remedies which encourage private, civil enforcement of laws against elder abuse and neglect" citing Negrete v. F & G Ins (C.D.Cal.2006) 444 F.Supp.2d 998, 1001. It then went on to observe: “To utilize the Elder Abuse Act's enhanced remedies, a plaintiff must prove ‘by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse.’ Id. s 15657.5(b); see also id. s 15657.5(a) (preponderance of the evidence standard governs a plaintiff's ability to recover ‘all other remedies otherwise provided by law’ and reasonable attorney's fees and costs associated with the financial elder abuse claim).”

This appears to misconstrue both the nature of the remedies themselves as well as the circumstances when they are to be applied. The proposition that EADACPA provides an “enhanced remedy,” at least with regard to financial abuse, is an historical vestige. It developed from early case law when EADACPA authorized the recovery of attorney’s fees for physical abuse, neglect, or fiduciary abuse arising out of conduct which could be characterized as recklessness, oppression, fraud, or malice. Conduct which would give rise to a claim for physical abuse (W & I Code § 15610.63) will always constitute actionable conduct under some other theory of liability, such as assault, battery, negligence, or malpractice. Similarly, conduct which would have given rise to a claim for fiduciary abuse (former § 15610) always constituted actionable conduct under a breach of fiduciary duty theory. In either instance, these independent legal theories authorized the recovery of compensatory damages. Where the victim of such actionable conduct is an elder and the conduct is done with recklessness, oppression, fraud, or malice, § 15657 “enhanced” the compensatory damages by imposing attorney’s fees as well. The justification for the enhancement was of course to encourage attorneys to take egregious cases which rose to the level of abuse.

Through various statutory revisions, fiduciary abuse was redefined as financial abuse and was severed from physical abuse. Conduct which now satisfies the statutory definition of financial abuse does not necessarily constitute actionable conduct under any other theory of liability. For example, a necessary element of fraud is justifiable reliance. However, reliance is not considered in the definition of financial abuse. Thus, where the elder’s reliance on a perpetrator’s misrepresentation is unreasonable, the statutory definition of financial abuse is still satisfied but the conduct does not constitute fraud (nor necessarily any other theory of recovery such as deceit, conversion, negligence, or breach of fiduciary duty). Where the definition of financial abuse is satisfied, the remedies specified in 15657.5 become available; they are no longer merely an enhancement of a remedy based upon breach of fiduciary duty. While the concept of an “enhanced” remedy may still have validity with regard to physical abuse, it is clear that elder financial abuse is now an independent cause of action with its own specific remedies (15657.5) and its own statute of limitations (15657.7).

The decision is also incorrect when it states that “to utilize the Elder Abuse Act's enhanced remedies, a plaintiff must prove by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse.” Proving recklessness, etc. by clear and convincing evidence results in two consequences: (1) general damages survive the death of the elder (subsection (b)(1)); and (2) no damages may be recovered from an employer unless Civil Code § 3294(b) is satisfied. Therefore, proving recklessness is irrelevant where the elder is alive and in any event, does not result in an enhanced remedy but rather the survival of general damages.

26. Shore v. Possess The Land, Inc. (4th Dist.) 2008 WL 1891428

Defendant, a lender, obtained title to elderly plaintiffs’ home by foreclosure. Plaintiffs claimed that when they returned to the property to retrieve their personal property they found some of it missing, apparently discarded by defendant. Plaintiffs filed an action for damages for the loss of this property and asserted causes of action which included conversion and elder financial abuse. The jury rendered a verdict in favor of plaintiffs on the conversion count but not on the financial abuse count. Plaintiffs appealed, arguing that the verdict was defective because conversion of an elder’s property constitutes financial abuse as a matter of law. In affirming the judgment, the DCA noted that plaintiffs had filed an incomplete appellate record and stated: “The jury may have found [defendant] acted wrongfully but not in ‘bad faith’ when he disposed of plaintiffs' possessions following the foreclosure. The jury may have found [defendant] did not ‘use’ the property merely by discarding it. Thus, the jury could have reasonably found [defendant’s] wrongful control of [plaintiffs’] personal property following the foreclosure was not a ‘wrongful use’ and therefore not elder abuse.” This observation implies that bad faith is a necessary element of wrongful use. However, 15610.30(b) provides that a person shall be deemed to have taken property for a wrongful use if, “among other things,” the property is taken in bad faith. The phrase “among other things” suggests that bad faith is only one of several ways of satisfying the wrongful use element. In addition, the statement that a defendant’s “wrongful control” of property might not constitute “wrongful use” suggests that wrongful use requires that the defendant obtain some type of benefit from the taking. However, it would seem that in removing plaintiffs’ property, defendant both used and benefited from the taking because defendant desired to clear the foreclosed home of the items and accomplished this by discarding them. Moreover, the purpose of EADACPA to protect elders against the wrongful taking of property would be frustrated if it is required that elders not only be harmed by the taking but that defendants also be benefited.

25. Toscano v. Ameriquest Mortgage Co. (E.D. Cal.) 2007 WL 3125023

Plaintiff, an elder, filed suit alleging elder financial abuse, breach of fiduciary duty, and related counts based on allegations that defendant lender orally represented proposed loan terms which were more favorable than those actually contained in the loan documents. In granting portions of defendant’s motion to dismiss, the court recognized that the 2000 amendment to W & I 15610.30 changing "fiduciary abuse" to "financial abuse" was a substantive change and that the statute no longer requires a fiduciary relationship. In addition, while the court recognized that it is possible for a fiduciary relationship to arise between a lender and a borrower, here the facts alleged were insufficient to do so.

24. Wolk v. Green (N.D. Cal.) 2007 WL 2572217

Plaintiff, an elder, filed suit alleging “Elder Fraud Abuse” based on allegations that defendant obtained payments through “deceptive” practices. In denying defendant’s motion to dismiss, the court acknowledged that prior courts have recognized that W & I Code 15657.5 creates a civil cause of action for elder financial abuse, citing Genton v. Vestin Reality Mortgage (USDC, SD 2007) 2007 WL 951838. It also rejected defendant’s argument that payments made to an attorney for services rendered cannot constitute “taking” or “appropriation,” citing Negrete v. F & G Life Insurance (2006) 444 F.Supp.2d 998, 1002-03.

23. Sonoma Foods, Inc. v. Sonoma Cheese Factory, LLC (N.D. Cal.) 2007 WL 2122638

Pursuant to a written agreement, Sonoma Foods was to transfer various trademarks to Sonoma Cheese Factory. The principal of Sonoma Cheese Factory, who was older than 65, filed suit and included a cause of action for elder financial abuse, alleging that by virtue of the agreement, the trademarks became his property, which defendant Sonoma Foods wrongfully failed to transfer.  The court granted Sonoma Foods motion to dismiss the financial abuse count, observing that W & I 15610.30 requires that "property of an elder" be wrongfully retained. However, it is not clear whether the court's decision was based on plaintiff's failure to allege that the property was owned by an elder rather by an LLC, plaintiff's failure to allege that the property had been wrongfully retained, or because the plaintiff indicated at oral argument that it intended to abandon its cause of action for elder financial abuse.

22. Genton v. Vestin Realty Mortgage II, Inc. (S.D. Cal.) 2007 WL 951838

Plaintiff brought an action against a corporation alleging that it was entitled to payment pursuant to an investment agreement and seeking damages for elder financial abuse. The District Court remanded the action to state court. In doing so, it rejected defendant's argument that EADACPA does not create a cause of action for financial abuse and stated that “the plain language of the [elder financial abuse] statute is sufficient to create a cause of action.”

21. Bethany v. Gentry (4th Dist.) 2007 WL 80965

Bethany filed a petition pursuant to Probate Code § 21320 to determine whether a proposed probate court petition would constitute a contest to testamentary instruments under which they were beneficiaries. The proposed petition sought to invalidate certain intervivos transfers and a trust amendment on various bases, including elder financial abuse. The probate court ruled that the proposed petition would not constitute a contest in violation of the no contest clauses in the instruments and Gentry appealed. In deciding the appeal (under the 2003 financial abuse statute), the DCA commented on the financial abuse count contained in the proposed petition by observing that it would not entitle Bethany to any substantive remedy other than the recovery of attorney’s fees and costs. Apparently, the proposed petition did not seek damages in addition to an order determining the validity of the transfers and amendment. The decision thus suggests that attorney’s fees might be recoverable in a probate proceeding where the violation of the financial abuse statute is raised solely to invalidate the disposition of property. This is consistent with the text of W & I Code § 15657.5(a) that provides that the financial abuse statute permits “all other remedies otherwise provided by law” (apparently including declaratory relief).

20. Deutsch v. Deutsch (4th Dist.) 2007 WL 80959

Elderly plaintiff filed suit seeking money owed on the purchase of his home. In affirming the judgment in favor of defendants, the DCA stated: “Thus, the viability of the elder [financial] abuse claim is dependent on whether the defendants acted in bad faith or intended to defraud [plaintiff] when they purchased the home and obtained the loan.” This implies that the first prong of the elder financial abuse state-of-mind element (“to a wrongful use”) may only be satisfied with a showing of bad faith. But, W & I Code § 15610.30(b) provides that a person shall be deemed to have taken property for a wrongful use if, “among other things,” he takes the property in bad faith. Does "among other things" mean that bad faith is only one of several ways of satisfying “wrongful use” or does it mean that bad faith is one of several elements, all of which are necessary? The former interpretation is more likely because the definition of financial abuse only requires conduct (taking, secreting, etc.) and the necessary state of mind (wrongful use, etc.) so that there would not be any "other things" required to prove financial abuse.

18. Sturgeon v. King (2d Dist.) 2006 WL 3556979

Defendants argued that W & I Code § 15610.07(a) requires that financial abuse must be accompanied by “resulting physical harm or pain or mental suffering." The DCA did not reject this argument, but instead found that an allegation of having been defrauded of hundreds of thousands of dollars implied that the plaintiff sustained mental suffering. It suggested that it would have been better practice to affirmatively allege that the financial abuse caused plaintiff mental suffering. This appears to be the right decision for the wrong reason. The better reasoning would be that W & I § 15610.07(a) does not define "financial abuse" at all; that definition is provided by W & I § 15610.30. (See comment below to Bellue v. Young-Bellue 2006 WL 1660536.)

17. Young v. Scully (4th Dist.) 2006 WL 3412546

This decision contains some language addressing the question of whether the financial abuse statute creates a statutory duty of care, perhaps akin to negligence. It avoids answering this question by deciding the case on a procedural issue.

16. In re Conservatorship of Estate of Ziegler (2d Dist.) 2006 WL 2686638

In this decision, the DCA states: “Appellant appears to believe that he is entitled to a de novo review on appeal. He contends that the standard of review on appeal is the same as the plaintiff's burden in the trial court, viz., to show reckless, oppressive, fraudulent, or malicious conduct by clear and convincing evidence, before punitive damages may be imposed. (See Welf. & Inst.Code, § 15657.5, subd. (b).)” This language suggests that a plaintiff may recover punitive damages on a showing of recklessness. But that is not what 15657.5(b) provides; rather, where a plaintiff proves recklessness, the standards set forth in CC § 3294(b) must first be satisfied before any damages are recovered from an employer based upon the acts of its employee. (W & I Code § 15657.5(b)(2).) To recover punitive damages, a plaintiff must prove oppression, fraud, or malice; proving recklessness would be insufficient. (CC § 3294(a).)

The Court of Appeal reversed the judgment denying the will from probate on the basis that the will was valid at the time it was executed. While Baird's conduct in retaining the will constituted elder financial abuse (but see footnote 8), under these facts, denying the will from probate was an improper remedy because decedent was aware that the will was still in effect and physical possession of it was not needed to revoke or supersede it.

Attorney successfully represented an elder in an elder abuse action. The total estate was approximately $1.2 million and the attorney requested fees of $67,422; the probate court awarded $11,134.71. Attorney appealed arguing that the trial court abused its discretion by failing to provide a reasoned basis for the amount of the fee award, that the award bore no rational relation to the services reasonably rendered, and that the trial court was biased against him. While the DCA recognized that fee awards are committed to the sound discretion of the trial court, it agreed that the order was a result of bias and reversed the decision, ordering that it be reassigned to a different district of the trial court. (In a separate disciplinary proceeding, the Commission on Judicial Performance publicly admonished the trial judge.)