Elder Abuse

Disagreeing with Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835 and following Ruiz v. Podolsky (2010) 50 Cal.4th 838, this decision holds that a medical provider's arbitration provision that complies with CCP 1295 requires the patient's survivors (who didn't sign the arbitration clause) to arbitrate their wrongful death claim based on negligent acts of a health care… Read More

Under W&I Code 15657.03, a court may issue a restraining order to prevent abuse of an elder. An elder abuse protective order “may issue on the basis of evidence of past abuse, without any particularized showing that the wrongful acts will be continued or repeated.  (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.) There was substantial evidence to support issuance… Read More

Following Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, this decision affirms an order denying arbitration after the defendant refused to pay all arbitration costs.  Substantial evidence supported the trial court's finding that Daniel Hang was indigent when he died while in defendant's care.  His son brought suit for elder abuse and negligent hiring and supervision as Hang's successor-in-interest. … Read More

This decision affirms an Anti-SLAPP dismissal of a malicious prosecution action against a mandatory reporter of elder abuse for an allegedly knowingly false report of elder abuse by plaintiff, accusing her of attempting to kill an elder by smothering him with a pillow.  Plaintiff also claimed that defendant then coerced the elder into corroborating the false report, leading to criminal… Read More

Plaintiff came to defendant's emergency room and was given an MRI without first checking to see if he had metal implants.  He did and was burned as a result of the procedure.  This decision affirms JNOV on plaintiff's elder abuse claim.  Plaintiff could not show a case of "neglect" since defendant did not have care or custody of plaintiff.  The… Read More

The trial court properly awarded plaintiff elder enhanced damages and attorney fees under the Elder Abuse Act based on defendant's depriving plaintiff of her right under Los Angeles' rent control law to re-rent her apartment after the defendant landlord returned it to the rental market within five years after evicting plaintiff under the Ellis Act.  The statutory right to re-rent… Read More

To obtain a right to attach order, the plaintiff must prove it is more likely than not that the plaintiff will obtain a judgment against the defendant on the claim on which it seeks an attachment, and that claim must be either a claim for money based on contract or a claim for elder abuse. (CCP 481.190, 483.010; Welf. &… Read More

Following Delaney v. Baker (1999) 20 Cal.4th 23, this decision holds that MICRA's one-year limitations on medical malpractice claims and $250,000 limit on non-economic damages did not apply to this elderly woman who was sexually assaulted by the defendant elder care facility's male attendant, based on a jury's finding that the defendant was not only guilty not only of general… Read More

Under W&I Code 15657.03, a court may issue a restraining order to prevent a defendant from committing threatened or repeated physical or financial elder abuse. Here, the trial court did not abuse its discretion in entering such an order against a step child who, along with her mother, tried to unduly influence the mother's elderly husband to change his estate… Read More

Under Welf. & Inst. Code 15610.57 and 15657, authorize enhanced remedies for the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise."  Building on Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, this decision… Read More

Fraud in factum, in execution or in the inception differs from promissory fraud, which is a false promise.  Fraud in execution occurs when the defendant causes the plaintiff to execute a contract that has materially different terms from those on which the parties orally agreed.  To allege a claim for fraud in execution, the plaintiff must allege facts showing the… Read More

An adult daughter, who had authority to make health care decisions for her elderly mother and who signed the admissions documents for the mother to be admitted to defendant's residential care facility for the elderly, lacked a power of attorney to act for the mother and so also lacked authority to sign an arbitration agreement on the mother's behalf as… Read More

An independent insurance agent that transacts business with many insurance companies is an agent of the insured, not any of the insurance companies, more akin to an insurance broker than a true insurance agent.  The insurer owes no duty of care to supervise such an agent and is not liable for the agent's torts.  In determining whether an applicant meets… Read More

California recognizes the tort of intentional interference with expected inheritance. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1050-1056.)  There are six elements to the tort.  Here, substantial evidence supported the trial court's findings that each of the elements was satisfied.  The decedent's wife had reason to expect an inheritance from her husband, who had consulted his probate attorney about changing… Read More

Health and Safety Code section 1430(b) allows a resident or patient of a nursing home to sue the facility for breach of any rights guaranteed by the Patients' Bill of Rights Act and for violation of regulations not relating to health and safety.  It allows up to $500 in damages, plus attorney fees and costs.  This opinion holds that the… Read More

Probate Code 859 provides for an award of double damages if the court finds that the defendant son has in bad faith wrongfully taken . . . property belonging to a . . . dependent adult, . . .  or has taken . . . the property by the use of undue influence in bad faith or through the commission… Read More

In a criminal prosecution for theft from an elder, defendant stipulated to a restitution amount of $700,000, so she was estopped from denying that damage amount in a later action for double damages under the Probate Code. Read More

In a criminal prosecution for theft from an elder, defendant stipulated to a restitution amount of $700,000, so she was estopped from denying that damage amount in a later action for double damages under the Probate Code. Read More

Facts sufficient to show recklessness (not merely negligence) are necessary in order for the issue of liability on elder abuse claim by medical services provider to go to the jury. Read More

An elder physical abuse claim was properly dismissed for failure to allege egregious withholding of needed medical care: the doctors only refused to give the care they reasonably thought would be medically ineffective. Read More