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Mandatory Authority

These comments focus on and summarize the financial abuse issues of published decisions issued by the California Supreme Court and Courts of Appeal and are not intended to fully brief these cases. Cases which are cited but that do not include comments may be of interest but do not directly involve financial abuse issues. Cases are listed by date of decision with the most recent at the top. Legislative changes are noted in red.

Index to Decisions

Agreement
26

Assisting
17

Attorney’s fees and costs
2, 10, 13, 23

Bad faith
15

CC 3345
18

Consumers Legal Remedies Act (CLRA)
18

Damages
20

Family Code 721
25

Foreclosure
22

History and purpose of EADACPA
1, 5, 7, 10

Independent cause of action
12, 17

Intentional interference with expectancy of inheritance
24

Probate Code § 259
6, 21

Probate Code § 859
28

Probate Code § 21350/21380
3, 8, 9, 27

Probate jurisdiction
7

Property of an elder
14, 20, 26

Protective orders
11, 16

Standing
4, 6, 19

Undue Influence
9, 25

Unfair Competition Law (UCL)
18

Wrongful use
15, 22, 29


29. Paslay v. State Farm (2d Dist. 2016) 248 Cal.App.4th 639
Elders’ home was damaged in a storm, and they made a claim for homeowners’ insurance benefits. Insurer limited benefits and elders sued for breach of contract, insurance bad faith, and financial abuse. The trial court granted insurer’s motion for summary adjudication and entered judgment against elders. Elders appealed.

In affirming the granting of the motion for summary adjudication on the financial abuse count, the DCA observed that 15610.30(b) imposes an additional requirement beyond the existence of improper conduct, namely, that “the person or entity knew or should have known that this conduct is likely to be harmful.” It further noted that breach of contract does not necessarily hinge on the state of mind or objective reasonableness of the breaching party’s conduct, and therefore, the wrongful use requirement is satisfied only when the breaching party actually knows that it is engaging in a harmful breach or reasonably should be aware of the harmful breach.

While the DCA’s comment that breach occurs without regard to the state of mind of the defendant is of course correct, this analysis ignores the statutory provision that wrongful use shall be deemed to have occurred if “among other things” the person knew or should have known that the taking was likely to be harmful. In other words, the objective and subjective knowledge standards are not the exclusive manner in which a wrongful taking may occur. While from a public policy perspective, it may be appealing to limit financial abuse to circumstances where some minimum level of culpability exists, the statute on its face does not appear to support the view that the objective or subjective knowledge standard must be satisfied in every instance.


28. Hill v. Staggers (1st Dist. 2016) 244 Cal.App.4th 1281
Co-executors of mother’s estate filed a probate petition against step-father to recover assets of the estate and for double the amount recovered pursuant to Probate Code section 859. While the petition was pending, step-father died and co-executors substituted step-father’s son in his place. Son filed a motion for summary adjudication seeking to dismiss the 859 claim for “double damages” asserting that such a recovery is barred by CCP § 377.42, which excludes the recovery of punitive damages against a decedent’s personal representative. The trial court granted the motion and co-executors sought a writ.

The DCA issued the writ overturning the order granting the motion holding that the “double damages” provided by Probate Code § 859 constitute a civil penalty and not punitive damages. Of equal significance is the decision’s explicit recognition that the “double damages” remedy is available solely on proof of financial abuse: “[S]ection 859 allows for double damages without any requirement that petitioners show any aggravated misconduct--only financial elder abuse.” It is also important to note that the actionable conduct alleged in this case preceded the amendment of section 859, effective January 1, 2014, which extended the remedy (previously limited to estates, conservatees, minors, and trusts) to elders and dependent adults. Accordingly, the section 859 remedy is now essentially available in all financial abuse actions.


27. Jenkins v. Teegarden (4th Dist. 2014) 230 Cal.App.4th 1128
Elder quit claimed a house to his caregiver, who had prepared the deed. After elder’s death, heir filed suit against caregiver seeking to invalidate the transfer pursuant to Probate Code § 21350 et seq. and for the recovery of financial abuse damages. After a bench trial, the court determined that Probate Code § 21350 did not apply because consideration had been delivered and therefore the transfer was not “donative” and entered judgment in favor of the caregiver on both counts. Heir appealed.

The DCA determined that Probate Code § 21350 applied to the transaction notwithstanding its repeal and replacement by Probate Code § 21380 and the absence of a specific savings provision. It then defined a “donative transfer” as a transfer that includes not only a transfer for zero consideration, but also a transfer for “unfair or inadequate consideration.” The DCA found the consideration given inadequate and reversed. In an unpublished portion of the decision (Section VI) the DCA declined to disturb the judgment on the financial abuse count. This is surprising since the donor was an elder and the consideration was unfair or inadequate. It is hard to imagine that the wrongful use prong of the financial abuse, which merely requires that the taker “should have known that this conduct is likely to be harmful to the elder” would not be satisfied by obtaining property from an elder for unfair or inadequate consideration.


26. Bounds v. Superior Court (2nd Dist. 2014) 229 Cal.App.4th 468
Elder, suffering from Alzheimer’s disease, owned commercial real property, title to which was held by her revocable living trust. Elder’s long-time neighbor pursued elder and repeatedly urged her to sell him the property. Neighbor made exaggerated claims about the poor condition of the property to frighten elder into selling it at a bargain price. After various discussions, elder signed a letter of intent (LOI) to sell the property at a price substantially lower than market value. Although no contract was ever signed, elder then signed escrow instructions directing the sale of the property to neighbor. Thereafter, neighbor filed suit against elder for specific performance and recorded a lis pendens. Elder filed a cross-complaint alleging financial abuse and related counts. Neighbor demurred, asserting that the cross-complaint failed to allege the taking of real property because title to the property had never been transferred. The trial court sustained the demurrer without leave to amend, and elder sought review.

The DCA determined that the LOI and the escrow instructions obtained from elder by neighbor were “agreements” within the meaning of Welf. & Instit. Code § 15610.30(c) notwithstanding that they were executory. Since a prospective seller or borrower against real property is required to disclose any known fact materially affecting the value or desirability of the property, elder’s ability to sell or borrow against the property was impaired by these agreements. Accordingly, the DCA held that the cross-complaint properly pleaded financial abuse by alleging that the neighbor wrongfully obtained elder’s agreement to the LOI and escrow instructions and that impairing the value of the property constituted the taking of elder’s property even though title to the property was never transferred. The DCA issued a writ to vacate the order sustaining the demurrer.

The emphasis in the decision that the LOI and escrow instructions constitute “agreements” pursuant to Welf. & Instit. Code § 15610.30(c) seems misplaced. The definition of financial abuse merely requires a “taking” and Welf. & Instit. Code § 15610.30(c) provides that a taking occurs where the elder is “deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest.” (Emphasis added.) Thus, while a taking may result from an agreement, an agreement is not required for a taking. Here, the taking occurred by means of the wrongfully obtained LOI and instructions – whether they were agreements or not – since they impaired the value of elder’s property.


Estate of McQueen (2014) 59 Cal.4th 602
See Persuasive Authority, Digest 46.


McArthur v. McArthur (1st Dist. 2014) 224 Cal.App.4th 651


25.  Lintz v. Lintz (6th Dist. 2014) 222 Cal.App.4th 1346
In 1999, when decedent was 71 years old, he married defendant, his third wife. They were married for six months and then divorced. In 2005, they remarried. Both decedent and defendant had children from previous marriages. Decedent was a retired developer worth millions of dollars, and at the time of his remarriage to defendant, his estate plan included a trust that named his issue as beneficiaries. Following his remarriage to defendant, decedent amended his trust to name defendant a 50 percent beneficiary, with the other 50 percent remaining with decedent’s issue. From 2005 to 2008, the trust was repeatedly amended, each time giving defendant a larger share of decedent’s estate and incrementally disinheriting decedent’s children. In 2008, defendant and decedent, as joint settlors and trustees, executed a new trust, prepared by defendant's attorney at defendant's direction. The new trust designated all of decedent's property as community property, gave defendant an exclusive life interest in decedent's estate, and gave defendant the right to disinherit decedent's youngest child and leave any unspent residue to defendant's two children. Decedent died in 2009.

Following decedent's death, decedent's children filed an action against defendant alleging, among other things, “fiduciary” abuse of an elder, breach of fiduciary duty, conversion, constructive trust, and undue influence. At trial, the probate court found defendant liable for elder financial abuse, breach of fiduciary duty, and conversion of decedent’s separate property, and awarded plaintiff attorney’s fees. In its statement of decision, the court ruled that decedent had testamentary capacity to execute the trust instruments but found that defendant had procured them by undue influence and therefore invalidated them.

Defendant appealed, contending that plaintiffs had offered no evidence that defendant had exerted undue influence at the time the invalidated trust instruments were signed. In affirming the probate court’s decision, the DCA considered the requirements for undue influence under both financial abuse and the invalidation of testamentary instruments. While Welfare & Institutions Code § 15610.30 incorporated the definition of undue influence provided by Civil Code § 1575, the DCA cited several decisions that imposed the same showing under Civil Code § 1575 as is required to void a testamentary document under the Probate Code. In any event, the DCA ruled that the probate court’s determination of financial abuse was sufficiently supported by evidence of defendant’s profligate spending of decedent’s money and thus the financial abuse count could be affirmed on that basis alone. With regard to the invalidation of the testamentary instruments, the DCA first considered the duty of good faith and fair dealing between spouses imposed by Family Code § 721 and the corresponding presumption of undue influence where one spouse secures an unfair advantage over the other. The DCA observed that the probate court should have applied the presumption of undue influence, thereby shifting the burden to defendant to rebut the presumption. However, even without this burden, defendant did not prevail on the issue of undue influence, and therefore the error was harmless. The DCA further held that while invalidation of a testamentary instrument requires that the undue influence be brought to bear on the “testamentary act,” that is, on the signing of the instrument, evidence of this pressure need not be presented as direct evidence. The DCA held that in this case, there was sufficient circumstantial evidence to support a finding that signing of the testamentary instruments had been obtained by undue influence.


Amended by Stats.2013, c. 668
Defines undue influence and provides guidance for determining if undue influence occurred by enacting 15610.70, applies the definition to financial abuse in 15610.30, and applies the definition to probate matters in Probate Code § 86.



24.  Beckwith v. Dahl (4th Dist. 2012) 204 Cal.App.4th 1039
Decedent (apparently an adult younger than 65) and plaintiff were long-time same-sex partners. At some point in their relationship, decedent showed plaintiff a will that decedent had saved on his computer. The will divided decedent’s entire estate equally between plaintiff and defendant, decedent’s estranged sister who was decedent’s sole heir at law. However, decedent did not print nor sign the will. Thereafter, decedent was hospitalized with a life-threatening illness. Decedent asked plaintiff to print the will and bring it to decedent so that he could sign it. When plaintiff was unable to find the will, decedent requested that plaintiff prepare a new will with the same dispositive terms, and plaintiff created a new will from a form he downloaded from the Internet. Before plaintiff presented the will to decedent, plaintiff called defendant to tell her about the will and e-mailed her a copy. Defendant responded by suggesting that a trust would be preferable to a will as it avoided probate. Defendant told plaintiff not to present the will to decedent, and told plaintiff that she would have a friend who was an attorney prepare the trust. Accordingly, plaintiff did not present the will to decedent. Soon thereafter, decedent died intestate. Defendant then commenced a probate, was appointed administrator of the estate, and asserted that defendant was decedent’s sole heir. Plaintiff’s objection to defendant’s petition for final distribution was denied as plaintiff lacked standing as either a creditor or heir. Plaintiff then commenced a civil action against defendant alleging intentional interference with expectancy of inheritance (IIEI), deceit by false promise, and negligence. Defendant demurred to all three counts. In sustaining the demurrer without leave to amend, the trial court ruled that a cause of action for IIEI had never been recognized in California and that the complaint failed to sufficiently allege the fraud and negligence counts.

On appeal, the DCA considered the decisional history related to IIEI and underlying policy considerations and concluded that a cause of action for IIEI should be recognized. In doing so, it established the following elements: (1) an expectancy of an inheritance; (2) causation; (3) intent; (4) the conduct must be directed at someone other than the plaintiff and be wrongful for some reason other than the fact of the interference; and (5) damages. In recognizing this new tort, the DCA was careful to observe that IIEI is not an independent cause of action; rather, it is derivative and only exists where the plaintiff has no direct rights against the wrongdoer. Accordingly, the DCA reversed the decision sustaining the demurrer.

Although this case does not directly involve financial abuse issues, it is interesting to note that decedent could probably be characterized as a dependent adult pursuant to Welf. & Instit. Code § 15610.23(b). Therefore the “taking” of decedent’s right to determine the disposition of his estate may constitute financial abuse and provide the underlying tort to the decedent required for IIEI. Nevertheless, it appears that this plaintiff must plead in the alternative both the direct wrong that he was defrauded and the derivative wrong of IIEI; if successful on the fraud count, the IIEI would necessarily be dismissed.


23.  Bates v. Presbyterian Hospital (2nd Dist. 2012) 204 Cal.App.4th 210
This is a physical and not a financial abuse case. Elder developed a pressure sore that became infected as a result of the alleged neglect of defendants. Elder died from sepsis, and the administrator of her estate filed an action, alleging among other things, elder abuse. Defendant served a CCP § 998 offer to compromise and offered to waive costs in exchange for a dismissal with prejudice. The offer expired without being accepted. Thereafter, plaintiff dismissed the complaint against this defendant without a settlement, and defendant then submitted a cost bill for more than $83,000. The cost bill included the substantial expense of an expert who had not been designated as a witness. The trial court allowed the cost bill over plaintiff’s objection.

On appeal, plaintiff argued, among other things, that the public policy underlying EADACPA’s mandatory fee provisions precludes the recovery of costs by a successful defendant where the claims of the plaintiff bear any relation to the elder abuse claim. The DCA rejected this argument and affirmed the decision. Although the court noted prior authority that the fee shifting requirements of EADACPA are unilateral, even where an independent basis exists for the recovery of fees by a successful defendant (citing Wood v. Santa Monica Escrow – see digest 10), the recovery of costs is not entitled to similar one-way treatment. Since a prevailing defendant is entitled to recover costs, pursuant to both CCP §§ 1032 and 998, “except as otherwise expressly provided by statute,” and since WIC § 15657 does not expressly prohibit a defendant from recovering costs, therefore a prevailing defendant is entitled to recover costs in the successful defense of an elder abuse action. Presumably the same result would occur in a financial abuse case brought pursuant to WIC § 15657.5.

22. Stebley v. Litton Loan Servicing (3rd Dist. 2011) 202 Cal.App.4th 522
Plaintiffs, a dependent adult and her husband, borrowed money secured by their home. Plaintiffs fell behind on their payments and purportedly commenced discussions with the lender regarding alternatives to foreclosure. Lender then foreclosed without further warning. Thereafter, plaintiffs filed an action pursuant to Civil Code § 2923.5 and for financial abuse. The trial court sustained a demurrer to plaintiffs’ second amended complaint without leave to amend. Plaintiffs appealed.

The DCA affirmed the decision and observed that the remedy provided by Civil Code § 2923.5 only allows additional time to discuss foreclosure alternatives and does not permit damages or the setting aside of a foreclosure. Similarly, the DCA affirmed the dismissal of the financial abuse count holding that foreclosing on collateral securing an unpaid debt does not constitute the taking of property for a wrongful use.


21. Estate of Dito (1st Dist. 2011) 198 Cal.App.4th 791
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.

The DCA observed that the prior petition adjudicated whether housekeeper was entitled to receive a portion of the estate as an omitted spouse while the present petition sought to determine that, notwithstanding housekeeper’s status as an omitted spouse, housekeeper had committed financial abuse and therefore might be characterized as pre-deceasing husband. Because these causes are distinct, the trial court erred by applying res judicata. Moreover, Probate Code § 259 does not completely disinherit an abuser but merely prevents the abuser from benefiting from her own wrongful conduct to the extent that damages and costs for financial abuse are awarded. Reversed and remanded.

20. Bonfigli v. Strachan (1st Dist. 2011) 192 Cal.App.4th 1302
Elders owned two rural parcels of property, and in a series of transactions, sold to defendants several options to develop these parcels. In doing so, they signed a durable power of attorney empowering defendants to do various acts in furtherance of the development should the options be exercised. Although the options expired, defendants nevertheless took various steps, including recording a lot line adjustment, based upon the terminated power of attorney and thereby reduced the market value of elders’ property. Elders filed an action for various causes of action including elder financial abuse. The trial court granted defendants’ motion for a directed verdict on the financial abuse count, finding that “[t]he gravamen of that offense is not something that the Court sees any evidence here fulfilling. And the Court would not believe that there is any clear and convincing evidence of any level required for the enhanced remedy.” The trial court also instructed the jury that the power of attorney remained valid.

On review, the DCA determined that the power of attorney had terminated, and therefore the jury had been erroneously instructed. The DCA also reversed the directed verdict on the elder financial abuse count finding that the facts at least satisfied the minimum requirements of a claim. In so ruling, it rejected defendants’ arguments that elder financial abuse requires findings of fraud and mental suffering. It is a bit puzzling that the DCA quoted without rejecting the trial court's observation of the lack of “clear and convincing evidence . . . required for the enhanced remedy.” The standard of proof for financial abuse is preponderance (WIC 15657.5(a)), and clear and convincing evidence of recklessness, oppression, fraud, or malice is required only to invoke the survival of general damages where the elder has died (WIC 15657.5(b)). Moreover, it is now reasonably clear that financial abuse is not merely an “enhanced remedy” but is an independent cause of action with its own statute of limitations. (WIC 15657.7.)

19. Lickter v. Lickter (3rd Dist. 2010) 189 Cal.App.4th 712
Elder created a trust that named her son successor trustee. Among other things, the trust provided for $10,000 gifts to two grandchildren with the residue of the estate going to the son. The trust further provided that if the son did not survive the elder, two step-daughters would receive the residue of the estate. Elder died and the two grandchildren received their $10,000 gifts but also brought an elder financial abuse action against the son (their father), the two step-daughters, and the step-daughters’ mother. The trial court granted summary judgment in favor of all defendants and grandchildren appealed.

In reviewing the trial court decision, the DCA considered WIC 15657.3, which confers standing on certain persons when the personal representative of the elder refuses to bring an elder abuse action or if the personal representative’s family is alleged to have committed the abuse. These others who then have standing include: (A) An intestate heir whose interest is affected by the action; (B) The elder’s successor in interest; and (C) An interested person as defined by Probate Code § 48. With regard to subsection (B), the grandchildren apparently would have become successors in interest only if all defendants were deemed to have predeceased the elder pursuant to Probate Code § 259. The trial court’s ruling on the summary judgment motion found, at least with regard to one defendant, that no evidence had been submitted upon which it could be found that this residual beneficiary had predeceased the elder. With regard to subsection (C), the DCA considered Probate Code § 48(a)(1), which provides that an interested person includes “[a]n heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” Defendants argued that since the grandchildren had already been paid their gifts, their interests could no longer be affected by the proceeding and therefore they lacked standing. (Query: did the grandchildren have non-economic claims against the estate – for example, for fiduciary duties owed by the trustee-son to the beneficiary-grandchildren that might be affected by the proceeding?) The grandchildren argued that the phrase “having a property right in or claim against a trust estate” modified only the category of “any other person” and not the multiple preceding categories, including beneficiary. Thus, the grandchildren argued that the only requirement for being an interested person was having the status of a beneficiary. The DCA disagreed with the grandchildren and affirmed the trial court decision.

In interpreting Probate Code § 48(a)(1), the DCA chose to apply an exception to the “last antecedent rule.” This canon of interpretation provides that a “closing phrase must be understood as applying only to the immediately preceding term.” However, the exception provides that when several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be applicable to all. (Arguably, a third canon might be applied; see Clark v. National Western Ins. (2010) 50 Cal.4th 605, 613-14 where the Supreme Court applied the rule of construction that where particular categories are followed by a general category, the general category is construed as applying only to things of the same nature or class as those listed.) To support its conclusion, the DCA cited precedent that standing requires a pecuniary interest affected by the outcome. Certainly, it would be challenging to draft a judgment in a financial abuse action seeking compensatory damages where the plaintiff has no pecuniary interest that has been harmed. The Supreme Court denied plaintiffs' petition for review.

Several troubling issues are raised by this case. For example, Probate Code § 48(a)(1) confers standing on an heir "having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding” while WIC § 15657.3(d)(1)(A) also confers standing on an heir "whose interest is affected by the action.” Presumably, having an “interest” is broader and includes rights not included in “having a property right in or claim against a trust estate or the estate of a decedent,” although it is difficult to imagine what those additional rights might be. Moreover, this case suggests the important underlying public policy issue of whether persons without a pecuniary interest in the outcome of financial abuse litigation should have standing. This issue can arise in both survival actions and where the elder is living but is controlled by the abuser. At least one problem of granting standing to persons without a property right is that it would allow the potential hijacking of an action brought by someone with property rights. In other words, a person without a property right could intervene and, as a practical matter, interfere with a potential settlement between the economically interested parties unless the intervenor was included in the settlement. And even if this "other" did not intervene, a defendant might be reluctant to resolve litigation knowing that others could thereafter file their own actions. It is interesting to note that the issues raised by this case are only encountered where no personal representative has been appointed or where the personal representative or a family member is alleged to be the abuser. Thus, the appointment of a personal representative willing to file suit is obviously the most direct path to standing. Where the alleged abuser seeks appointment as personal representative because the will nominates him as executor or based on his priority pursuant to Probate Code § 8461, the most direct strategy may be to challenge his appointment based on Probate Code §§ 8402 and 8502.


18. Clark v. National Western Insurance (2010) 50 Cal.4th 605
Elders sued insurers for violations of the unfair competition law (UCL), breach of contract, breach of covenant of good faith and fair dealing and fraud in connection with the sale of high-commission annuities with large surrender penalties. In addition to other remedies, elders sought the enhanced remedy of CC 3345. The trial court granted insurer’s motion for judgment on the pleadings as to the enhancement under the UCL, and elders sought a writ of mandate. The 2d DCA granted the elder’s writ, and the Supreme Court then granted review.

First, insurers contended that CC 3345 applies only to actions brought under the Consumers Legal Remedies Act (CLRA) and not under the UCL because CC 3345 uses the identical phrases as those used in the CLRA (“unfair or deceptive acts” and “unfair methods of competition”) – phrases that do not appear in the UCL. The Court rejected this contention. Next, insurers argued that the text of CC 3345 must be interpreted so that its trebling provision is applied only to remedies designed to punish. Insurers further argued that because the sole monetary remedy under the UCL is restitution, the purpose of which is to restore the status quo and not to punish, the trebling provision can not be applied to claims based on the UCL. The Court agreed. In doing so, it applied the canon of statutory construction that requires that if a statute contains a list of specified items followed by more general words, the general words are limited to those items that are similar to those specifically listed. Therefore, the phrase “or any other remedy the purpose or effect of which is to punish or deter” modifies only the earlier phrase “a fine, or a civil penalty or other penalty.” Since restitution is not a fine or a penalty, CC 3345 does not apply to actions whose sole monetary remedy is restitution, such as the UCL.


17. Das v. Bank of America (2d Dist. 2010) 186 Cal.App.4th 727
Elder suffered from dementia, limitations in movement and speech, confusion, and deficits in language, reasoning, and judgment, some or all of which were obvious to casual observers. Elder entered into a series of real estate transactions and obtained a loan from BofA. The loan became delinquent and BofA foreclosed. In attempting to recover from this loss, elder fell victim to a series of lottery scams that required elder to wire money to foreign accounts. To accomplish this, elder deposited money in a BofA account, obtained hundreds of blank wire transfer forms, and repeatedly instructed BofA to transfer funds totaling more than $300,000. Although some BofA personnel wondered about the elder’s state of mind, notice of suspected elder abuse was never reported to law enforcement or APS. Elder died shortly thereafter. Elder’s daughter filed an action against BofA alleging breach of fiduciary duty for making the initial loan to elder, together with six counts for financial abuse based on the failure of BofA to report suspected abuse. The trial court granted BofA’s demurrer and daughter appealed. In affirming the decision, the DCA ruled that the 2008 revisions to WIC 15610.30 were substantive and therefore were inapplicable to these prior events. In doing so, it declined to consider whether financial abuse constitutes an independent cause of action. The DCA also decided that the language of 15630.1 (the mandatory reporting statute) expressly denying a private remedy for failure to report barred the elder from asserting such claims. The DCA further noted that a loan does not create a fiduciary relationship between a lender and a borrower and that a defendant who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless some relationship between them gives rise to a duty to act. The DCA did note that a bank may be liable for negligence if it fails to discharge its duties with reasonable care or if it renders substantial assistance by knowingly aiding the commission of a tort. In the instant case however, the complaint failed to state facts sufficient to allege such claims. In connection with the latter, the DCA considered 15610.30(a)(2), which includes “assisting” in the definition of financial abuse. It recognized that California has generally adopted the common law rule for aiding and abetting an intentional wrong in which the defendant (1) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement or (2) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person. Thus, the court rejected applying a strict liability rule for assisting financial abuse, stating instead: “We thus conclude that when, as here, a bank provides ordinary services that effectuate financial abuse by a third party, the bank may be found to have ‘assisted’ the financial abuse only if it knew of the third party’s wrongful conduct.”


16. Gdowski v. Gdowski (4th Dist. 2009) 175 Cal.App.4th 128 
Elder filed a petition for a protective order against his daughter alleging that she had physically and emotionally abused him. A temporary restraining ordered issued. At the hearing for a permanent injunction, the trial court determined that the evidence of past abuse was essentially balanced but that the cross-examination of the elder by the daughter’s counsel had been disrespectful and abusive, and the trial court observed that the daughter’s silence in the face of such abuse “was the straw that made the difference.” The permanent injunction issued and the daughter appealed, arguing (1) that an elder abuse protective order requires evidence of the threat of future abuse; and (2) that there was insufficient evidence to support the protective order. The DCA observed that while the express purpose of W & I Code § 15657.03 was to prevent “a recurrence of abuse,” no showing that the wrongful acts will be repeated is required. However, with regard to the sufficiency of the evidence, the DCA held that the manner of an attorney’s cross-examination is not evidence, nor is the silence of the attorney’s client an admission. Since the trial court had expressly found the evidence to be balanced but for this inference, the elder had failed to carry his burden of proof; accordingly, the order was reversed.


15. Teselle v. McLoughlin (3d Dist. 2009) 173 Cal.App.4th 156
Elder created a trust which provided for the transfer of various property to his brother and his brother’s family upon the elder’s death. Prior to the elder’s death, the elder amended the trust to remove the transfer of a particular piece of real property. Upon the elder’s death, his successor trustee transferred the property to the brother because the successor trustee was unaware of the amendment. The successor trustee thereafter filed an action for elder financial abuse and related counts alleging that the brother and his family knew of the amendment but did not disclose it, took various other property from the elder prior to the elder’s death, and had unduly influenced the elder. Defendants moved for summary judgment, which the trial court granted. The DCA reversed, deciding that while defendants had offered evidence that they had not taken the disputed property, they failed to offer any evidence refuting that they had not “secrete[d], appropriate[d], or retain[ed] the property in bad faith . . . . In this case, defendants have not conclusively negated an element of the cause of action. They could have done so by adducing evidence that showed that none of them had taken, secreted, appropriated, or retained any partnership assets, or that if they did they did not do so in bad faith or with an intent to defraud.”

This dictum is misleading in that it suggests that proving bad faith is a requirement of establishing “wrongful use.” However, W & I Code § 15610.30(b) provides that a “person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.” (Emphasis added.) Accordingly, proving bad faith is only one way of establishing “wrongful use.”


Amended by Stats.2008, c. 475, effective January 1, 2009
Substantially revised the definition of financial abuse (W & I Code § 15610.30) by: adding the word "obtains" to the description of prohibited conduct; adding taking property by undue influence as a basis; and revising the meaning of "wrongful use" to mean, among other things, the taking of property where the person knew or should have known that it would be harmful to the elder. Substantially revised the remedies available for financial abuse (W & I Code § 15657.5) by: authorizing the recovery of compensatory damages; and providing for vicarious liability for employers. Added W & I Code § 15657.6 providing for the recovery of financial abuse damages where property is not promptly returned to an elder who lacks capacity. Added W & I Code § 15657.7 providing for a four year statute of limitations, commencing upon discovery of the facts giving rise to the claim.



14. Wood v. Jamison (2d Dist. 2008) 167 Cal.App.4th 156
In a series of transactions, an elder transferred property to an unrelated defendant who had convinced her that he was her nephew. One of the transactions was a joint venture in which an attorney provided legal services to the elder and the defendant. The attorney was paid various fees, including a finder’s fee paid directly to him by a lender. A bench trial resulted in judgment against the attorney on various counts, including elder financial abuse. In affirming the judgment, the DCA rejected the attorney’s contention that the finder’s fee was not the elder’s property because it had been paid to him by the lender and not by the elder.


13. Sanders v. Lawson (2nd Dist. 2008) 164 Cal.App.4th 434
The trustee of elders’ trust and the conservator of elders’ estates brought an action for elder financial abuse against elders’ daughter for undue influence in obtaining title to elders’ property. After a bench trial, the court found in favor of plaintiffs and awarded damages, attorney’s fees, trustee’s fees, and conservator’s fees. On appeal, the 2nd DCA reversed. With regard to the trustee’s fees, the court held that while W & I Code § 15657.5(a) expressly provides that the term costs “includes, but is not limited to, reasonable fees for the services of a conservator,” no similar provision authorizes an award of trustee fees, and therefore it was reversible error for the trial court to award trustee's fees.


12. Perlin v. Fountain View Management, Inc. (2nd Dist. 2008) 163 Cal.App.4th 657
This is a physical not a financial abuse case in which an elder died as a result of care he received at a skilled nursing facility. A jury found, by clear and convincing evidence, that caregivers acted recklessly but found causation only by a preponderance of the evidence; thereafter, the court denied plaintiffs’ motion for attorney’s fees. In affirming the decision, the DCA rejected plaintiffs’ argument that EADACPA does not create an independent cause of action. In doing so, the second DCA criticized its own earlier language in Berkley v. Dowds (2007) 152 Cal.App.4th 518, in which it stated that “[t]he Act does not create a cause of action as such” and expressly held that it does create an independent cause of action. Plaintiffs’ petition for review was thereafter denied by the Supreme Court.


Amended by Stats.2007, c. 48, effective January 1, 2008
Creates standing for heirs, successors in interest, and interested persons where the elder has died and no personal representative exists or where the personal representative refuses to proceed by adding 15657.3.



Amended by Stats.2007, c. 45, effective January 1, 2008
Extends the provisional remedy of attachment to any action for financial abuse by adding 15657.01.



11. Bookout v. Nielsen (4th Dist. 2007) 155 Cal.App.4th 1131
Plaintiff and defendant were both elders. Plaintiff purchased a residence and to satisfy income requirements put defendant on title. Thereafter, defendant allegedly harassed plaintiff and engaged in other intimidating and abusive conduct. Plaintiff filed a civil action seeking quiet title to the property, elder financial abuse, fraud, and related claims. Thereafter, plaintiff sought a protective order pursuant to W & I Code 15657.03. The trial court issued the protective order and defendant appealed. On appeal, the 4th DCA held: (1) protective orders issued under EADACPA are reviewed for abuse of discretion, and the factual findings underpinning such protective orders are reviewed for substantial evidence; and (2) protective orders under EADACPA require proof by a preponderance of the evidence of a past act or acts of elder abuse. The order was affirmed.


10. Wood v. Santa Monica Escrow Company (2d Dist. 2007) 151 Cal.App.4th 1186
Plaintiff, the personal representative and trustee of a deceased elder, sued Santa Monica Escrow Company and others in connection with an alleged scheme to deprive the elder of her property by inducing the elder to obtain a loan secured by her residence. The complaint alleged four causes of action against Santa Monica, all arising out of a single transaction: elder financial abuse; breach of fiduciary duty; negligence; and breach of contract. During the course of the litigation, plaintiff voluntarily dismissed all causes of action against Santa Monica, and Santa Monica moved for an award of attorney's fees based upon an attorney's fee clause contained in its escrow contract. (Defendant's claim for attorney's fees was not based on the contract count, which requires a prevailing party on the merits, but rather on the dismissal of the tort claims pursuant to Santisas v. Goodin (1998) 17 Cal.4th 599, 617.) The trial court denied the request and Santa Monica appealed. In affirming the decision, the Court of Appeal held that W & I 15657.5 creates a unilateral fee shifting provision under which fees are awarded to a prevailing plaintiff but not to a prevailing defendant. In doing so, it applied the reasoning in Carver v. Chevron (2004) 119 Cal.App.4th 498 that such provisions are created by the Legislature as a deliberate stratagem to encourage enforcement of some important public policy and that this legislative purpose would be frustrated if a defendant were permitted to recover fees on an alternate and overlapping legal theory based upon the same facts. Accordingly, a prevailing defendant may not recover fees, even where authorized pursuant to an alternate legal theory, where the several causes of action arise from a single transaction of alleged elder abuse.


9. Estate of Odian v. Robinson (4th Dist. 2006) 145 Cal.App.4th 152
Elder died leaving her entire estate to her paid live-in companion of about two years. The companion petitioned to probate the will. The will was contested and petitions to invalidate the trusts and other transfers were filed. The trial court found that the companion exercised undue influence and that the elder lacked capacity when she executed the trusts and transfers. The court also found that the companion was a care custodian within the meaning of Probate Code § 21350, and as such, was disqualified as a beneficiary of the elder’s testamentary instruments. On appeal, the companion asserted that she was not a care custodian as a matter of law because (1) she had a personal relationship with the elder; (2) she was not a professional caregiver; and (3) she did not provide the kind of services which define a care custodian's role. The DCA affirmed the trial court decision, relying principally on Bernard v. Foley (2006) 39 Cal.4th 794.


8. Bernard v. Foley (2006) 39 Cal.4th 794
Elder created a trust that left her entire estate to her only living relative, a cousin with whom she had little contact. During the last several months of her life, long-standing close personal friends provided the elder with personal care, including health care, without substantial compensation. Three days before her death, the elder revised her estate plan so as to leave the bulk of her estate to the friends. Following her death, the cousin sued to set aside the transfer to the friends asserting that it was invalid pursuant to Probate Code § 21350. The trial court declined to set aside the transfer based upon its finding that the friends were not care custodians within the meaning of 21350. The DCA reversed, holding that notwithstanding that the friends were not paid for their services and their personal relationship had preceded the period of care, they were nevertheless care custodians within the meaning of 21350. The Supreme Court affirmed.


Quiroz v. Seventh Avenue Center (6th Dist. 2006) 140 Cal.App.4th 1256


Amended by Stats.2005, c. 140, effective January 1, 2006
Requires various financial institutions to report suspected incidents of elder financial abuse by adding 15630.1.



7. Kayle v. Remery (2d Dist. 2005) 134 Cal.App.4th 1
In 2002, conservator was appointed for an elderly couple who resided at a retirement “hotel.” In 2003, conservator filed a petition in the probate court seeking protective orders against various family members and employees of the hotel, apparently alleging physical abuse, neglect, and financial abuse. The petition was denied without prejudice. In early 2004, conservator filed a complaint in the probate court seeking compensatory and punitive damages and other relief. The court determined the matter should be tried as a general civil action because punitive damages based on claims of elder abuse were asserted, and without notice or hearing, dismissed the complaint without prejudice. Conservator appealed the dismissal. In reversing the dismissal, the DCA observed that W & I Code § 15657.3 authorizes the probate court to hear a civil action alleging elder abuse where a conservator has been appointed. While subsection (b) permits the probate court to transfer the matter to a general civil court, it does not authorize its dismissal. Although the court may dismiss a matter on its own motion and without notice in certain limited circumstances, a dismissal here would be inconsistent with both the general purposes of EADACPA and the specific text of W & I Code § 15657.3.


Smith v. Ben Bennett, Inc. (4th Dist. 2005) 133 Cal.App.4th 1507


Amended by Stats.2004, c.886, effective January 1, 2005
Separated the remedy for financial abuse from that for physical abuse or neglect by adding 15657.5, which lowered the standard of proof from clear and convincing evidence to a preponderance and eliminated the requirement of proving recklessness, oppression, fraud, or malice.



Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426


6. Estate of Lowrie v. Lowrie (2nd Dist. 2004) 118 Cal.App.4th 220
Defendant Sheldon, son of decedent, trustee of decedent's trust, and executor of her will, physically abused decedent and coerced her to make inter vivos transfers of property to him and to the detriment of other family members, including Lynelle. Lynelle, granddaughter of decedent, successor trustee of the trust, and successor executor and legatee of the will, filed suit for elder financial abuse following decedent's death. The trial court entered judgment denying the will probate on the basis of elder financial abuse and awarded Lynelle compensatory damages, attorney's fees, and punitive damages. On appeal, Sheldon argued that Lynelle lacked standing pursuant to W & I 15657.3(d). The court applied Probate C. 259 -- which affects a forfeiture whereby the wrongdoer is deemed to have pre-deceased the decedent -- and accordingly, reversed the trial court's decision refusing to probate the will as the improper remedy. This forfeiture, however, resulted in Lynelle becoming the trustee and executor, and she therefore had standing pursuant to W & I 15657.3(d). In dictum, the court suggested an even broader interpretation of standing might be justified and might include persons with a mere expectancy or contingent interest. (See page 230 and footnote 12 on page 231.)


5.  Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771
This is a physical not a financial abuse case. However, it is significant both because it is only the second Supreme Court EADACPA decision and because of its general discussion of the history and purpose of the Act. The Court held that the procedural prerequisites for seeking punitive damages for the professional negligence of a health care provider do not apply to punitive damage claims based on elder abuse.


4.  Harnedy v. Whitty (1st Dist. 2003) 110 Cal.App.4th 1333
The beneficiary of a trust (brother) sued the trustee (sister) for financial abuse to cancel a quitclaim deed from the trust to the sister, accomplished by the sister (as trustee) during the final decline of their father. The trial court entered judgment in favor of brother and sister appealed, claiming that the brother lacked standing. The decision (affirming the judgment) does not expressly address any EADACPA issue.


Marron v. Superior Court (4th Dist. 2003) 108 Cal.App.4th 1049


3.  Estate of Shinkle (6th Dist. 2002) 97 Cal.App.4th 990
Probate Code 21351 creates a rebuttable presumption that a transfer to a "care custodian" is a product of fraud, duress, menace, or undue influence, and an ombudsman for a care facility remains a "care custodian" even after his formal relationship with a resident has ended.


2.  Levitt and Page (Labow) v. Hankin (2d Dist. 2001) 93 Cal.App.4th 544
Attorney successfully represented two elders in separate elder abuse actions. In the first matter, the total estate was approximately $370,000 and the attorney requested fees of $72,537.14; the probate court awarded $64,000. In the second matter, the total estate was approximately $130,000 and the attorney requested fees of $82,515; the court awarded $69,000. Attorney appealed arguing that the court had abused its discretion in considering the size of the estates in deciding to reduce the fee award. The DCA affirmed the orders citing W & I Code § 15657.1 and Rule of Professional Conduct 4-200(B)(5).


Amended by Stats.2000, c.442, effective January 1, 2001
Changed the definition of financial abuse by applying it to any “person or entity,” thus deleting the “care or custody, or who stands in a position of trust” phrase. Added “or both” phrase after “to a wrongful use or intent to defraud.” (W & I Code § 15610.30.)



Gregory v. Beverly Enterprises, Inc. (3rd Dist. 2000) 80 Cal.App.4th 514


Community Care v. Superior Court (4th Dist. 2000) 79 Cal.App.4th 787


1.  Delaney v. Baker (1999) 20 Cal.4th 23
This is a physical not a financial abuse case and the first case in which the Supreme Court took up the issue of the overlap between EADACPA and MICRA. It is relevant to financial abuse because of its general discussion of the history and purpose of the Act. The Court held that a cause of action seeking heightened remedies for reckless, oppressive, fraudulent, or malicious elder abuse is not based on "professional negligence" within the meaning of W & I 15657.2 and therefore punitive damages are not limited by MICRA.


Amended by Stats.1998, c.946, effective January 1, 1999
Changed the term “fiduciary abuse” to “financial abuse” and expanded its definition from fiduciaries to any “person, including, but not limited to, one who has the care or custody of, or who stands in a position of trust to [the elder]” who “takes, secretes, or appropriates their money or property, to any wrongful use, or with the intent to defraud.” (W & I Code § 15610.30.)



Amended by Stats.1994, c. 594, effective January 1, 1995
Renumbered the definition of fiduciary abuse by moving it from 15610(f) to 15610.30.



Amended by Stats.1991, c.774, effective January 1, 1992
The Act was substantially revised and renamed the Elder And Dependent Adult Civil Protection Act (EADACPA). It added a new Article 8.5 providing for civil remedies, which authorized the recovery of attorney’s fees where a plaintiff proved – by clear and convincing evidence – the existence of physical abuse, neglect, or fiduciary abuse and also proved recklessness, oppression, fraud, or malice.


Amended by Stats.1986, c.769, effective January 1, 1987
Revised the definition of fiduciary abuse by expanding it from exploiting a “dependent adult” to exploiting an “elder or dependent adult.” (W & I Code § 15610.)


Amended by Stats.1985, c.1120, effective January 1, 1986
In a section defining terms, the amendment coined the term “fiduciary abuse.” Fiduciary abuse applied to “any person who has the care or custody of, or who stands in a position of trust to, a dependant adult,” and a dependent adult was defined as any adult with physical or mental limitations. Fiduciary abuse occurred when such a person “takes, secretes, or appropriates [the dependent adult’s] money or property.” Incidents of fiduciary abuse were then included in those required to be reported; no civil remedies or private causes of action were authorized. (W & I Code § 15610.)


Stats.1982, c.1184, effective January 1, 1983
Original enactment of the Abuse of the Elderly and Other Dependent Adults Act. Required the gathering of data on the suspected incidents of abuse through mandatory reporting to government social services agencies; it only covered physical and psychological abuse and neglect and did not address the economic exploitation of elders.