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Potential damages (and writ of attachment) in a California financial elder abuse case explained

Feb 26th, 2015 | By | Category: Financial Elder Abuse

Types of remedies and damages that may be awarded in Financial Elder Abuse lawsuits in CA.

Damages and remedies elder abuse cases

Introduction

Financial elder abuse is a serious problem in California.  Our office has seen so many different types of abuses against elders (defined as persons over 65 year of age) that it makes our hearts sink a little.  Financial crimes and civil abuses are a fact of life when elder persons are seen as “targets” because of their age and vulnerabilities.  Some of the types of financial elder abuses we have seen include:

1.  A car dealership pressuring an elder woman into buying a car at inflated prices while giving well below market value for the trade in.

2.  Mortgage loan companies “socking away” an elder couple into a predatory option arm mortgage, when the proper financial product should have been a reverse mortgage loan.

3.  Attorneys fee gouging a litigation client, telling them they have a great case, collecting 40-50k in legal fees, and then telling them they cannot win a case “as a matter of law” then charging them over $4,000 to file a motion to withdraw from the case.

4.  Ex-boyfriends who prey on a dying elderly person and getting them to sign over a grant deed while sitting in the intensive care unit of a hospital.  The ex-boyfriend (who claimed he was going to marry the woman) knew full well that a financial power of attorney was held by one of the daughters of the victim, and yet did this fraudulent transaction behind her back.

5.  Real estate brokers, developers, and lawyers taking advantage of a commercial property owner and basically bilking her out of her crown jewel pice of real estate.  Click here for an excellent article on financial elder abuse dealing with real estate.

6.  Insurance brokers and agents who steer an elderly couple into a risky financial life insurance policy so the broker could fee gouge on the commission while failing to counsel and advise the client.  When the elderly client died, his wife was left with nothing except a insurance bad faith claim and financial elder abuse causes of action.

7.  Debt collection companies that lie to, abuse, trick, confuse, and harass elders to collect debts they owe, or perhaps loans where they co-signed for their grandchildren or other family members.  This can result in an FDCPA violation as well as constitute financial elder abuse.

These stories are sad each time we hear them.  Elders tend to be more trusting than the younger millenials, and many grew up in a culture where your word was your bond, and deals could be done on a handshake.  But the good old days of the 40’s and fifties are gone.  It is this “trusting” capacity that can often be the downfall of an elder when engaging in financial transactions.

Financial elder abuse carried out at the hands of a caregiver or in home nurse or caretaker is another common problem.  These people come to the homes of the elder, care for them, build the trust level, then engage in fraudulent and/or coercive behavior to try to get the money, gold, jewelry, real estate, stocks, bonds, investments and other personal and real property of the elder, and claim it as their own.  In short, you see alot of fraud, trickery, deceit, misrepresentations, coercian, pressure-tactics and other eggregious behavior that financially injures the elder in what is supposed to be their golden years.  Its despicable, but fortunately the California financial elder abuse laws are positioned to help the elder recover from the wrong-doers.

This blog discusses the types of remedies and damages an elder may be able to recover in a California financial elder abuse case.  As you will see, the remedies are quite impressive.

What is the general definition of financial elder abuse under California law?

The short definition of financial elder abuse under California law is the taking of money or property of an elder in bad faith.  This means, ripping off the senior and taking money or property that they are entitled to.  The allegations you might see in a sample elder abuse complaintmight be the following:

“Third Cause of Action—Financial Elder Abuse”:

The Complaint’s third cause of action alleges financial elder abuse in violation of California Welfare and Institutions Code section 15657.5 et seq., as defined in section 15610.30. Under section 15610.30, “financial elder abuse” occurs when a person or entity:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use OR with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
See definitions under Cal. Welf. & Inst.Code § 15610.30.  In Abbit v. ING USA Annuity & Life Ins. Co., 999 F. Supp. 2d 1189, 1199-200 (S.D. Cal. 2014) the California Federal Court discussed a case involving financial elder abuse allegations:
“Plaintiff alleges Defendant abused a confidential position of trust to wrongfully take retirement savings from Plaintiff. Defendant moves to dismiss Plaintiff’s financial elder abuse claim, arguing Plaintiff cannot establish “intent to defraud” or “bad faith. Plaintiff responds that bad faith is not required under section 15610.30; allegations of deceptive annuity sales practices suffice to state a claim for elder abuse, the Court agrees. Under the plain language of the financial elder abuse statute, plaintiffs may allege taking of property “for a wrongful use or with intent to defraud, or both.”
The Court continued:
“The statute defines “wrongful use” as a taking of property where the person or entity “knew or should have known that this conduct is likely to be harmful to the elder.” See §15610.30(b). The Court finds that Plaintiff’s Complaint includes numerous allegations that plead “wrongful use” as statutorily defined accordingly, the Court DENIES Defendant’s motion to dismiss Plaintiff’s third cause of action for financial elder abuse.”

Cal. Welf. & Inst. Code § 15657.5 (compensatory damages & attorney fees)

The statutory remedies for violations of (the financial elder abuse statute) are set forth in Cal. Welf. & Inst. Code § 15657.5  and include:
(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, and where it is proven by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse, in addition to reasonable attorney’s fees and costs set forth in subdivision (a), compensatory damages, and all other remedies otherwise provided by law, the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply.
“In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.”
As noted above, this limitation to damages DOES NOT apply.

Punitive damages may be available for violations of California financial elder abuse act!

(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 punitive damages may be imposed against an employer found liable for financial abuse as defined in Section 15610.30. This subdivision shall not apply to the recovery of compensatory damages or attorney’s fees and costs.
(d) Nothing in this section affects the award of punitive damages under Section 3294 of the Civil Code.
(e) Any money judgment in an action under this section shall include a statement that the damages are awarded based on a claim for financial abuse of an elder or dependent adult, as defined in Section 15610.30. If only part of the judgment is based on that claim, the judgment shall specify what amount was awarded on that basis.
So in cases where someone is engaged in abusive conduct, punitive damages must be explored in financial elder abuse cases.

Does a Plaintiff have to prove mental suffering to get an award of damages?

No.  In Bonfigli v. Strachan, 192 Cal. App. 4th 1302, 1316-17, 122 Cal. Rptr. 3d 447, 459 (2011) the Court held:
“To the extent respondents continue to assert that the financial elder abuse claim requires a finding that the Bonfiglis suffered mental suffering, they are mistaken. The statute does not require a finding of mental suffering. Rather, the statute requires a finding that the defendant took the property for “a wrongful use or with intent to defraud or both.”  While cases may be brought under the elder abuse statute alleging mental suffering (see Cal W & I § 15610.07), the Bonfiglis did not do so, nor did they allege emotional distress or seek damages for pain and suffering. Consequently, they were not required to offer evidence of mental suffering to support their claim of financial elder abuse. Because we conclude that the court’s pretrial ruling on the power of attorney issue resulted in erroneous jury instructions and permeated the entire trial, we reverse the court’s ruling on the directed verdict motion.”

Does the statute only apply to defenseless or mentally incompetent senior citizens?

No.  As the Bonfigli v. Strachan court discussed:
“The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.Code, §15600 et seq.) was enacted to provide for the “private, civil enforcement of laws against elder abuse and neglect” See Delaney v. Baker (1999) 20 Cal.4th 23, 33, 82 Cal.Rptr.2d 610, 971 P.2d 986). The statutory provisions are not limited to mentally incompetent or physically impaired elders, or persons of limited financial means. (Cal. Welf. & Inst.Code, §15600, 15610.27, 15610.30.) Under the statute, it is not necessary that the taker maintain an intent to defraud if it can be shown that the person took the property for a wrongful use and “knew or should have known that [his or her] conduct is likely to be harmful to the elder.”

Pre-judgement writ of attachment (Cal W & I Code section 15657.01)

One of the other important features of the California financial elder abuse act is the ability of a Plaintiff to apply to the Court for a PRE-JUDGEMENT WRIT OF ATTACHMENT (to attach certain enumerated property of the Defendants and this can be done EX-PARTE without notice to the Defendants.  This is a potentially powerful remedy.

Watch the videos (part 1 and part 2) to understand the attachment process!

As always, we are keeping you informed!  Click on the pictures below to watch our video series on the pre-judgement writ of attachment.   Make sure to click on the RED “V” to subscribe to our channel so you can obtain FREE legal updates!  As we say “be smarter than your friends.”

                                     California financial elder abuse law firm     writ of attachment process elder abuse

Welfare and Institutions Code section 15657.01 authorizes issuing a writ of attachment in cases alleging financial elder abuse of an elder or dependent adult.  This code section states:

“15657.01.  Notwithstanding Section 483.010 of the Code of Civil Procedure, an attachment may be issued in any action for damages pursuant to Section 15657.5 for financial abuse of an elder or dependent adult, as defined in Section 15610.30. The other provisions of the Code of Civil Procedure not inconsistent with this article shall govern the issuance of an attachment pursuant to this section. In an application for a writ of attachment, the claimant shall refer to this section. An attachment may be issued pursuant to this section whether or not other forms of relief are demanded.”

California Financial Elder Abuses Resources

1.  Jury instructions for financial elder abuse

2.  Jury instructions (CACI 3031)

Contact one of our financial elder abuse lawyers

California has a powerful financial elder abuse that that protects people who are the victim of stock, insurance, real estate, legal and other frauds.  We accept cases in California and Arizona.  Many financial elder abuse cases can be taken on a contingency fee basis or hybrid of contingency fee and low hourly rate fees.  Contact us at (877) 276-5084 or fill out the contact form below to discuss your case and our flexible fee agreements.

 

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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