Article: Encroaching on an Elder’s Property May Trigger Enhanced Elder Abuse Remedies
Real Property: Misuse of Elder’s Property May Trigger Enhanced Elder Abuse Remedies
While the term “elder abuse” generally invokes images of seniors languishing from neglect in nursing homes, or worse, being physically battered, California’s elder abuse statute1 actually provides much broader and far-reaching protection to seniors than one might expect. As is discussed in this article, California’s elder abuse statute is a powerful tool that can be used to provide comprehensive recovery for seniors in a wide variety of situations.
What is Elder Abuse?
California’s elder abuse statute, applies to anyone residing in the state who is 65 years or older.2 For California seniors, any of the following activities may constitute elder abuse under the terms of the Elder Abuse Act: physical abuse; neglect; financial abuse; abandonment; isolation; abduction; other treatment with resulting physical harm or pain or mental suffering; or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.3
Physical abuse and neglect of an elder is extremely serious misconduct with both potential civil and criminal consequences. However, the focus of this article is instead on the broad range of misconduct that can come under the umbrella of “financial abuse” and for which seniors can file claims to seek recovery if they are harmed.
So what is financial abuse? If you’re thinking that only misconduct like telephone and cyber scams, embezzlement, fraud, and other forms of theft, rise to the level of financial abuse, you’ll be surprised to know that the Elder Abuse Act actually casts a substantially broader net. Financial abuse of an elder is when a person or entity “takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for wrongful use or with intent to defraud, or both.”4 Let’s break this down a little. If someone takes something that belongs to an elder, whether it’s, for example, cash, credit cards, stocks, or bonds, physical possessions like jewelry, clothes, art, real property like houses or land, or even interests in property, such as the right to full use and possession of their property, such acts may constitute elder abuse.
What makes the elder abuse statute particularly broad, and inclusive of various forms of property rights is that the statute prohibits not solely taking exclusive possession of the property, but also acts constituting “appropriation.” Appropriation is not limited to just taking something and keeping it, which is traditionally what one thinks of when thinks of embezzlement from seniors and other forms of theft. Rather, appropriation is the act of making use of something to serve one’s own interests.5
By way of example, Wood Litigation recently prevailed in a case where we represented an 85-year-old resident of Marin County against a neighboring landowner who purchased a parcel next door with the intent to develop it. The neighboring landowner decided to build a new parking pad for his property, and in order to save himself some money, he decided to anchor his parking pad to our client’s retaining wall. Without our client’s consent, the neighboring landowner built a parking pad that derived at least half of its support from our client’s retaining wall, instead of shouldering the cost to making his parking pad self-standing, which would have required putting in a concrete support column. The case was tried before a jury and the jury agreed that the neighboring landowner was liable to our client for not only trespass, and nuisance, but also for elder abuse.
What Type of Recovery Is Available for Financial Abuse of An Elder Adult?
There are various different kinds of damages that are available to victims of elder financial abuse, among them are:
A. Recovery of Misappropriated Property
A victim whose real or personal property has been misappropriated may seek the return of the items of property that were improperly taken from them.
B. Compensatory Damages
A victim of elder financial abuse can also recover compensatory damages in the form of both economic damages (such as lost earnings and lost profits) and non-economic damages, such as emotional distress. Furthermore, in determining the amount or appropriateness of damages for emotional distress, it is no defense that a plaintiff’s purported pain and suffering is disproportionate to the harm inflicted where a plaintiff was particularly sensitive or susceptible to pain or emotional trauma.6
C. Punitive Damages
Unlike many other types of claims, the Elder Abuse Act also allows for recovery of punitive damages where the defendant is guilty of recklessness, oppression, fraud, or malice in the commission of the abuse.7 Unlike compensatory damages that are intended to make a plaintiff whole again, the purpose of punitive damages is to punish a defendant’s bad behavior and likewise deter future wrongful conduct by making an example out of the defendant.8 In order to ensure that punitive damages actually accomplish this end, when punitive damages are calculated, the defendant’s wealth is one of the factors considered, in order to ensure that if the defendant is wealthy, the amount of damages awarded is sufficient to still sting.9
Why is the Elder Abuse Act Such a Powerful Tool for a Litigant?
While many people believe that if they sue someone for harming them and they win, they have a right to recover attorney’s fees, that is often not the case. In reality, a party who prevails in litigation only has the right to recover attorneys’ fees in a limited number of cases. And usually, when the case involves personal injury, or taking or misappropriating property, there is no right to recover attorney’s fees. Thus, the vast majority of cases dealing with such issues are cases where a victim often needs to find an attorney who will work on a contingent fee (keeping an agreed-to percentage of the recovery if there is one) or an attorney who will take the case for an hourly fee. In such cases, however, even if the plaintiff wins at trial, the defendant usually doesn’t have to pay for the plaintiff’s legal fees, even though the plaintiff would never have incurred those fees were it not for the defendant’s bad behavior.
By contrast, California’s Elder Abuse Act provides that when a defendant is found liable for financial abuse of an elder, in addition to any other remedies available, the plaintiff must be awarded reasonable attorney’s fees and costs.10 This means that even cases that might otherwise not be pursued because the cost of pursuing them might appear to exceed the potential return, may still be very much worth pursuing.
As with the example provided above, where Wood Litigation successfully represented an 85-year-old whose property rights were interfered with by her neighbor’s construction of a parking pad, our client recovered not only economic and non-economic damages from the jury, she also recovered attorney’s fees as provided for under the Elder Abuse Act.
The right to recovery of attorney’s fees for a prevailing plaintiff also substantially increases the potential settlement value of a case where a viable elder abuse claim is alleged, which can be helpful for resolving claims short of litigation.
The concept of financial abuse of an elder might typically make one think of telemarketing scams, embezzlement, or other forms of theft. However, financial abuse of an elder likewise extends to conduct such as an invasion of a senior citizen’s property rights. Moreover, not only can various types of invasions to property rights be construed as elder financial abuse, California’s elder abuse laws provide for the recovery of attorney’s fees, making even small invasions of privacy worth pursuing.
1 Officially entitled, Elder Abuse and Dependent Adult Civil Protection Act, Welfare & Institutions Code § 15600, et seq.
2 See Welfare & Institutions Code § 15610.27.
3 Welfare & Institutions Code § 15610.07.
4 Welfare & Institutions Code § 15610.30.
5 Black Law Dictionary 101 (6th Ed. 1990) (defining the use of the term “appropriation” in tort law as “the act of making a things one’s own or exercising or making use of an object to subserve one’s own interest”).
6 See, e.g. Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471; Judicial Council of California Civil Jury Instruction, CACI Nos. 3927, 3928.
7 Welfare & Institutions Code Code § 15657.5(b).
8 See, e.g. Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 18.
9 See id.
10 Welfare & Institutions Code § 15657.5(a).
This article was authored by Denise Mejlszenkier.