(Reprintedwith permission from the Consumer Attorneys of San Diego, Trial BarNews, Vol. 31, Issue 8, p. 9 (October 2008)
This month I wanted to touch on the area of elder abuse law,as it is a growing area of tort law and also one plagued by a fair amount ofuncertainty given its relatively recent genesis. One aspect in particular that has provenparticularly difficult for the courts to untangle is the nature of a cause ofaction for “elder abuse.” Ever since thepassage of the Elder Abuse and Dependent Adult Civil Protection Act (Welf.& Inst.Code, § 15600, et seq.), courts and commentators have grappled withwhether the act actually creates a new statutory cause of action where nonepreviously existed or simply provides enhanced damages and remedies providedcertain prerequisites are satisfied. Recently, the court in Perlin v. FountainView Management, Inc. (2008) 163 Cal.App.4th 657 weighed in on the issue andopted for the former construction, disagreeing with the contrary holding in Berkelyv. Dowds (2007) 149 Cal.App.4th 333, 338.
In Perlin, the court was called upon to decide the matter inthe context of a request for an award of attorney fees and costs under Welfareand Institutions Code § 15657 after a successful verdict in an elder abusecase. Section 15657 provides:
Where it is proven by clear and convincing evidence that adefendant is liable for physical abuse... or neglect... and that the defendanthas been guilty of recklessness, oppression, fraud, or malice in the commissionof this abuse, the following shall apply, in addition to all other remediesotherwise provided by law: [¶] (a) Thecourt shall award to the plaintiff reasonable attorney's fees and costs...[¶] (b) The limitations imposed bySection 377.34 of the Code of Civil Procedure on the damages recoverable shallnot apply. However, the damages recovered shall not exceed the damagespermitted to be recovered pursuant to subdivision (b) of Section 3333.2 of theCivil Code; [¶] (c) The standards setforth in subdivision (b) of Section 3294 of the Civil Code regarding theimposition of punitive damages on an employer based upon the acts of an employeeshall be satisfied before any damages or attorney's fees permitted under thissection may be imposed against an employer.
The facts in Perlin were that the defendants Woodland Careand Summit Care mistreated decedent Perlin, then 90 years old, during rehabilitationfollowing knee replacement surgery. While in the care of Woodland, the decedent developed a wound on herleg. She was forced to return to thehospital that performed the original surgery, where she subsequently died frompneumonia. Her heirs and successors ininterest filed suit against Woodland and Summit, alleging, inter alia, causesof action for negligence, willful misconduct, fraud, constructive fraud,intentional infliction of emotional distress, elder abuse, and wrongful death.
At trial, the jury returned a verdict in favor of theplaintiffs and against Summit Care on plaintiffs' elder abuse cause of actionand awarded plaintiffs $300,000. After remitting the verdict to $250,000 inaccordance with Welfare and Institutions Code § 15657, subdivision (b), thetrial court entered judgment in the amount of $271,711.33, which amountincluded an award of $21,711.33 in interest.
Following the verdict, the plaintiffs moved for $781,945.25in attorney fees pursuant to section 15657. The plaintiffs argued that they were entitled to attorney fees undersection 15657 because the jury found by clear and convincing evidence that oneor more of Summit Care's employees acted recklessly and the parties hadstipulated that Summit Care ratified the acts and omissions of itsemployees. The trial court disagreed anddenied the request for fees on the ground that a showing of only recklessness‑andnot “oppression, fraud, or malice”‑by clear and convincing evidence wasinsufficient. Perlin, supra, at p. 660.
The appellate court affirmed the denial of attorney fees,albeit for different reasons than those advanced by the lower court. The issue confronting the appellate court waswhether in order to recover attorney fees under section 15657, the plaintiffmust establish not only liability for neglect or abuse by clear and convincingevidence, but also causation. At thetrial, the jury found causation under a preponderance of the evidence standard,but was unable to reach a verdict for causation under the clear and convincingevidence standard.
On appeal, the plaintiffs argued that the “clear andconvincing evidence” standard required under section 15657 does not apply tothe element of causation. The argumentflowed from the premise that the Elder Abuse and Dependent Adult Act does notcreate a new cause of action, but rather only provides for additional remedieswhen elder abuse is proved in connection with an underlying cause of actionunrelated to the Act's provisions. Assuch, causation would not an aspect of a defendant’s liability under section15657 – and therefore subject to the clear and convincing evidence burden --because causation would relate to the underlying cause of action.
As support for the contention that the Act did not create anindependent cause of action, the plaintiffs referenced language in Berkley v.Dowds (2007) 152 Cal.App.4th 518, that “[t]he Act does not create a cause ofaction as such, but provides for attorney fees, costs and punitive damagesunder certain conditions.” Id. at p.529, citing ARA Living Centers‑Pacific, Inc. v. Superior Court (1993) 18Cal.App.4th 1556, 1563‑1564. While thatlanguage would seem to be clear, the Perlin exercised its prerogative todisagree with the conclusions reached by a sister appellate court.
According to the court in Perlin, the Berkley holding isinconsistent with dicta from the California Supreme Court in a few pertinentcases. For example, in Barris v. Countyof Los Angeles (1999) 20 Cal.4th 101, the Supreme Court described its thenrecent decision in Delaney v. Baker (1999) 20 Cal.4th 23, 40 as “concludingthat a cause of action for ‘reckless neglect’ under the ... Act ..., isdistinct from a cause of action ‘based on professional negligence’ within themeaning of section 15657.2.” Id. at p.116. Similarly, in Covenant Care, Inc.v. Superior Court (2004) 32 Cal.4th 771, the Supreme Court stated that“regardless of its language, Central Pathology [Service Medical Clinic, Inc. v.Superior Court (1992) 3 Cal.4th 181] affords no basis for concluding theLegislature intended its reference in section 425.13(a) to ‘professionalnegligence’ to encompass elder abuse, let alone as yet uncreated statutorycauses of action for elder abuse committed with recklessness, oppression, fraudor malice.” Covenant Care, Inc. v.Superior Court, supra, at p. 786. TheSupreme Court also specifically referred to various iterations of “Elder AbuseAct causes of action.” See, id. at pp.788-790.
The Perlin court was persuaded by the language in Barris v.County of Los Angeles, supra, 20 Cal.4th 101, and Covenant Care, Inc. v.Superior Court, supra, 32 Cal.4th 771 that the Elder Abuse and Dependent AdultAct does create an independent cause of action. Perlin, supra, at pp. 665-666. See also, Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82 [“Theelements of a cause of action under the Elder Abuse Act ... arestatutory....”] The court also found it“noteworthy” that when the Legislature added Article 8.5 to the Act, of whicharticle section 15657 is a part, it labeled the article, “Civil Actions forAbuse of Elderly or Dependent Adults.” Perlin,supra, at p. 666, citing Stats, 1991, c. 774 (SB 679), § 1.
Deriving from the fact that the Elder Abuse and DependentAdult Act creates a separate statutory cause of action instead of simplyproviding for enhanced remedies, at least according to the Perlin court, is theconclusion that in order to recover attorney fees under Welfare &Institutions Code § 15657, a plaintiff must prove causation by clear andconvincing evidence. “‘Liability’ undersection 15657 includes as an element ‘causation,’ which, as all elements of liability,must be proved by clear and convincing evidence for purposes of an award ofattorney fees. [citation]” Perlin, supra,at p. 664. Accordingly, because theplaintiffs in the underlying case had failed to obtain a verdict on causationby clear and convincing evidence, the court affirmed the lower court’s denialof the plaintiff’s petition for attorney fees:
We reject plaintiffs' argument that a violation of the Actdoes not constitute an independent cause of action. Accordingly, plaintiffs'failure to obtain a verdict establishing causation‑one element of liability‑byclear and convincing evidence, precludes an award of attorney fees. Thus, thetrial court correctly denied plaintiffs' motion for attorney fees. Perlin, supra, at p. 666.
Because of the disagreement among the appellate courts onthis issue, and the relative importance of solid precedent in this area of law,I would not be at all surprised to see Perlin or another similar case wend itsway to the California Supreme Court in short order.