Self-Help and Enhanced Remedies for Elder Abuse
Wood Litigation successfully settled a case on behalf of a homeowner who's patio was over the property line and in the path of a major hotel development in Berkeley, California. The developer destroyed the patio and a lawsuit followed. The developer ultimately settled the suit because we showed (1) the developer had exposure for engaging in self-help and (2) the neighbor was elderly and wrongful use of his property triggered enhanced elder abuse remedies. In this article, we will take a closer look at California’s prohibition against self-help and enhanced remedies provided by elder abuse statutes, which can be triggered by trespassing on an elderly person’s land.
Forcible Entry Statute and Self-Help
A long time ago, a person who lawfully owned real property had the right to exclusive possession, and that allowed the owner to use reasonable force to kick a trespasser out and regain possession of the property. In other words, legal title was a complete defense to any claim for damages. This sanctioned use of force is known as “self-help.” It quickly became apparent, however, that self-help not only increased confrontations over genuine ownership disputes but also created an opportunity for “powerful men” to use self-help to forcibly eject their “weaker neighbors, and also by force to retain their wrongful possession…” To curb self-help, forcible entry was penalized and courts recognized a corresponding claim for damages against the self-help perpetrator.
Today, California law prohibits forcible entry as well as forcible detainer (improper retention of real property), and provides a summary process for the owner to recover possession of the property using court power. California’s statutory scheme, “by necessary construction,” forbids self-help. Consequently, a trespassing plaintiff can sue for damages resulting from the “forcible entry by another irrespective of whether the entering party has title or the right to possession.”
In a 1969 case, the plaintiff—who was 85 years old with a heart condition at the time of the dispute—sued his neighbor for intentional infliction of emotional distress. A “heated verbal exchange” took place between the two over the neighbor’s removal of plaintiff’s fence along a disputed property line. After the neighbor repeatedly refused plaintiff’s requests to stop removing the fence, “plaintiff became very excited and upset.” The Court ultimately affirmed judgment for the plaintiff, holding that true ownership of the property was irrelevant to the dispute. In the case settled by Wood Litigation discussed above, destroying the patio was an act of prohibited self-help that exposed the developer. The developer had another problem as well. The client was older.
California’s Financial Elder Abuse Law
California’s Elder Abuse and Dependent Adult Civil Protection Act (the Act) is part of a Legislative effort “to curb the worst practices against our elders.” California’s elder abuse laws provide enhanced damages to deter abuse of people 65 or older. The Act broadly defines abuse to include not just physical abuse but also neglect and financial abuse, among other forms. Financial abuse occurs when a person or company “takes” or deprives an elderly person of real or personal property “for a wrongful use or with intent to defraud.” A 2008 amendment to the Act created a conclusive presumption of financial abuse where the person taking the property “knew or should have known” that the conduct was likely to harm to the elderly owner.
Conclusive Presumption of Financial Abuse
The 2008 amendment enhanced the Act’s protections in a few respects. First, the “knew or should have known” language offers two ways of establishing financial abuse. Plaintiffs may demonstrate that either (1) the individual defendant knew that the conduct was likely to harm (a subjective standard), or (2) any reasonable person would have known that the conduct was likely harm elderly people (an objective standard). By providing both a subjective and objective test, the Legislature made it easier for plaintiffs to establish financial abuse.
Second, if the plaintiff establishes that the defendant “knew or should have known” the taking would result in harm to elders, then the defendant “shall be deemed” to have committed financial abuse. Therefore, once a plaintiff establishes that the defendant should have known the conduct would result in harm to elderly people, then evidence that the specific defendant did not personally have that awareness is no defense to the statutory violation. In one case involving an attorney’s financial abuse in representing an elderly client, the court found that “any attorney” would know the defendant’s conduct was inappropriate, thus evidence of the defendant’s actual state of mind was irrelevant.
Attorney’s Fees & Double Damages
Importantly, the Act provides that once financial abuse has been proven, the plaintiff “shall” recover reasonable attorney’s fees and costs in addition to all other allowable damages. Because the law uses “shall,” a court does not have the discretion to refuse to award such fees if financial abuse is established by a preponderance of the evidence (i.e., more likely than not, as opposed to heightened standards such as clear and convincing evidence). At least one court has suggested that the right to recover attorney’s fees under the Act applies to all causes of action stemming from the elder abuse.
Moreover, the Act provides for recovery of compensatory damages, including pain and suffering, where a defendant is liable for financial abuse and it can be proven by clear and convincing evidence that the defendant acted with “recklessness, oppression, fraud, or malice” in commission of the abuse. California Probate Code makes the defendant liable for twice the value of the property recovered (i.e., double damages) in an action for elder financial abuse. While these remedies are specific to cases of financial abuse, California’s laws provide enhanced remedies for others forms of elder abuse as well.
In the Berkeley case, the developer effectively took the elder's patio when the developer destroyed it, triggering enhanced remedies under the Welfare Code. If you are in the San Francisco Bay Area, contact the attorneys at Wood Litigation for a consultation regarding any property disputes or cases involving mistreatment of elders.
 Daluiso v. Boone (1969) 71 Cal.2d 484, 490 (“Under the ancient common law it is supposed that one entitled to the possession of land was privileged to enter and use such force, short of death or serious bodily harm, as reasonably appeared to be necessary to the repossession.”) (citing 1 Harper and James, The Law of Torts (1956) § 3.15, p. 255).
 Daluiso, supra, 71 Cal.2d at p. 491.
 Daluiso, supra, 71 Cal.2d at pp. 491-92.
 Cal. Civ. Proc. Code, § 1159, et seq. The civil forcible entry statute prohibits both (1) breaking open doors, windows or any other part of a house “by any kind of violence,” and (2) peacefully entering property but then using force, threats, or menacing conduct to eject the party in possession. Cal. Civ. Proc. Code, § 1159, subd. (a).
 Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1038 (citing cases).
 Daluiso, supra, 71 Cal.2d at p. 494.
 Daluiso, supra, 71 Cal.2d at p. 499; see also Allen v. McMillion (1978) 82 Cal.App.3d 211, 214 (“[W]e hold that one in peaceable though wrongful possession of real property may sue in tort for forcible interference with that possession even in the absence of injury to his person or goods and that plaintiffs have adequately stated such a cause of action.”).
 Daluiso, supra, 71 Cal.2d at p. 488.
 Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734-36 (noting 2008 amendment to the definition of “financial abuse,” which added the “known or should have known” language, took effect on January 1, 2009).
 Cal. Welf. & Inst. Code, § 15610.27 (“‘Elder’ means any person residing in this state, 65 years of age or older.”).
 Cal. Welf. & Inst. Code, § 15610.07, subd. (a).
 Cal. Welf. & Inst. Code, § 15610.30, subds. (a)-(c).
 Cal. Welf. & Inst. Code, § 15610.30, subd. (b).
 Wood v. Jamison (2008) 167 Cal.App.4th 156, 164.
 Cal. Welf. & Inst. Code, § 15657.5, subd. (a).
 Wood v. Santa Monica (2007) 151 Cal.App.4th 1186, 1188 (“Here the complaint alleged a cause of action for elder abuse, as well as causes of action for which attorney fees may be awarded based on contract. All causes of action arose from the same transaction. Defendant therefore is not entitled to attorney fees.”).
 Cal. Welf. & Inst. Code, § 15657.5, subd. (b).
 Cal. Prob. Code, § 859; see also Hill v. Superior Court (2016) 244 Cal.App.4th 1281 (referring to California Probate Code 859 providing for recovery of “double damages”).