Trial Bar News – Jeremy K. Robinson
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 of uncertainty given its relatively recent genesis. One aspect in particular that has proven particularly difficult for the courts to untangle is the nature of a cause of action for “elder abuse.” Ever since the passage of the Elder Abuse and Dependent Adult Civil Protection Act (Welf.& Inst.Code, § 15600, et seq.), courts and commentators have grappled with whether the act actually creates a new statutory cause of action where none previously existed or simply provides enhanced damages and remedies provided certain prerequisites are satisfied. Recently, the court in Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657 weighed in on the issue adopted for the former construction, disagreeing with the contrary holding in Berkely v. Dowds (2007) 149 Cal.App.4th 333, 338.
In Perlin, the court was called upon to decide the matter in the context of a request for an award of attorney fees and costs under Welfare and Institutions Code § 15657 after a successful verdict in an elder abuse case. Section 15657 provides: Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse… or neglect… and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: (a) The court shall award to the plaintiff reasonable attorney’s fees and costs. (b) The limitations imposed bisection 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code; (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.
The facts in Perlin were that the defendants Woodland Care and Summit Care mistreated decedent Perlin, then 90 years old, during rehabilitation following knee replacement surgery. While in the care of Woodland, the decedent developed a wound on her leg. She was forced to return to the hospital that performed the original surgery, where she subsequently died from pneumonia. Her heirs and successors in interest filed suit against Woodland and Summit, alleging causes of 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 the plaintiffs and against Summit Care on plaintiffs’ elder abuse cause of action and awarded plaintiffs $300,000. After remitting the verdict to $250,000 in accordance with Welfare and Institutions Code § 15657, subdivision (b), the trial court entered judgment in the amount of $271,711.33, which amount included an award of $21,711.33 in interest.
Following the verdict, the plaintiffs moved for $781,945.25 in attorney fees pursuant to section 15657. The plaintiffs argued that they were entitled to attorney fees under section 15657 because the jury found by clear and convincing evidence that one or more of Summit Care’s employees acted recklessly and the parties had stipulated that Summit Care ratified the acts and omissions of its employees. The trial court disagreed and denied the request for fees on the ground that a showing of only recklessness‑and not “oppression, fraud, or malice” by clear and convincing evidence was insufficient. 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 was whether in order to recover attorney fees under section 15657, the plaintiff must establish not only liability for neglect or abuse by clear and convincing evidence, but also causation. At the trial, the jury found causation under a preponderance of the evidence standard, but was unable to reach a verdict for causation under the clear and convincing evidence standard.
On appeal, the plaintiffs argued that the “clear and convincing evidence” standard required under section 15657 does not apply to the element of causation. The argument flowed from the premise that the Elder Abuse and Dependent Adult Act does not create a new cause of action, but rather only provides for additional remedies when elder abuse is proved in connection with an underlying cause of action unrelated to the Act’s provisions. As such, causation would not an aspect of a defendant’s liability under section 15657 – 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 an independent 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 of action as such, but provides for attorney fees, costs and punitive damages under certain conditions.” Id. at p.529, citing ARA Living Centers‑Pacific, Inc. v. Superior Court (1993) 18Cal.App.4th 1556, 1563‑1564. While that language would seem to be clear, the Perlin exercised its prerogative to disagree with the conclusions reached by a sister appellate court.
According to the court in Perlin, the Berkley holding is inconsistent with dicta from the California Supreme Court in a few pertinent cases. For example, in Barris v. County of Los Angeles (1999) 20 Cal.4th 101, the Supreme Court described its then recent decision in Delaney v. Baker (1999) 20 Cal.4th 23, 40 as “concluding that a cause of action for ‘reckless neglect’ under the … Act …, is distinct from a cause of action ‘based on professional negligence’ within the meaning 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 the Legislature intended its reference in section 425.13(a) to ‘professional negligence’ to encompass elder abuse, let alone as yet uncreated statutory causes of action for elder abuse committed with recklessness, oppression, fraud or malice.” Covenant Care, Inc. v. Superior Court, supra, at p. 786. The Supreme Court also specifically referred to various iterations of “Elder Abuse Act 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 Adult Act 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 [“The elements of a cause of action under the Elder Abuse Act … are statutory….”] The court also found it “noteworthy” that when the Legislature added Article 8.5 to the Act, of which article section 15657 is a part, it labeled the article, “Civil Actions for Abuse 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 Dependent Adult Act creates a separate statutory cause of action instead of simply providing for enhanced remedies, at least according to the Perlin court, is the conclusion that in order to recover attorney fees under Welfare &Institutions Code § 15657, a plaintiff must prove causation by clear and convincing evidence. Liability under section 15657 includes as an element ‘causation,’ which, as all elements of liability, must be proved by clear and convincing evidence for purposes of an award of attorney fees. Perlin, supra, at p. 664. Accordingly, because the plaintiffs in the underlying case had failed to obtain a verdict on causation by clear and convincing evidence, the court affirmed the lower court’s denial of the plaintiff’s petition for attorney fees:
We reject plaintiffs’ argument that a violation of the Act does not constitute an independent cause of action. Accordingly, plaintiffs’ failure to obtain a verdict establishing causation – one element of liability – by clear and convincing evidence, precludes an award of attorney fees. Thus, the trial court correctly denied plaintiffs’ motion for attorney fees. Perlin, supra, at p. 666.
Because of the disagreement among the appellate courts on this 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 its way to the California Supreme Court in short order.