15. Gdowski v. Gdowski (4th Dist. 2009) 175 Cal.App.4th 128

Elder filed a petition for a protective order against his daughter alleging that she had physically and emotionally abused him. A temporary restraining ordered issued. At the hearing for a permanent injunction, the trial court determined that the evidence of past abuse was essentially balanced but that the cross-examination of the elder by the daughter’s counsel had been disrespectful and abusive, and the trial court observed that the daughter’s silence in the face of such abuse “was the straw that made the difference.” The permanent injunction issued and the daughter appealed, arguing (1) that an elder abuse protective order requires evidence of the threat of future abuse; and (2) that there was insufficient evidence to support the protective order. The DCA observed that while the express purpose of W & I Code § 15657.03 was to prevent “a recurrence of abuse,” no showing that the wrongful acts will be repeated is required. However, with regard to the sufficiency of the evidence, the DCA held that the manner of an attorney’s cross-examination is not evidence, nor is the silence of the attorney’s client an admission. Since the trial court had expressly found the evidence to be balanced but for this inference, the elder had failed to carry his burden of proof; accordingly, the order was reversed.

14. Teselle v. McLoughlin (3d Dist. 2009) 173 Cal.App.4th 156

Elder created a trust which provided for the transfer of various property to his brother and his brother’s family upon the elder’s death. Prior to the elder’s death, the elder amended the trust to remove the transfer of a particular piece of real property. Upon the elder’s death, his successor trustee transferred the property to the brother because the successor trustee was unaware of the amendment. The successor trustee thereafter filed an action for elder financial abuse and related counts alleging that the brother and his family knew of the amendment but did not disclose it, took various other property from the elder prior to the elder’s death, and had unduly influenced the elder. Defendants moved for summary judgment, which the trial court granted. The DCA reversed, deciding that while defendants had offered evidence that they had not taken the disputed property, they failed to offer any evidence refuting that they had not “secrete[d], appropriate[d], or retain[ed] the property in bad faith . . . . In this case, defendants have not conclusively negated an element of the cause of action. They could have done so by adducing evidence that showed that none of them had taken, secreted, appropriated, or retained any partnership assets, or that if they did they did not do so in bad faith or with an intent to defraud.”

This dictum is misleading in that it suggests that proving bad faith is a requirement of establishing “wrongful use.” However, W & I Code § 15610.30(b) provides that a “person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.” (Emphasis added.) Accordingly, proving bad faith is only one way of establishing “wrongful use.”

13. Wood v. Jamison (2d Dist. 2008) 167 Cal.App.4th 156

In a series of transactions, an elder transferred property to an unrelated defendant who had convinced her that he was her nephew. One of the transactions was a joint venture in which an attorney provided legal services to the elder and the defendant. The attorney was paid various fees, including a finder’s fee paid directly to him by a lender. A bench trial resulted in judgment against the attorney on various counts, including elder financial abuse. In affirming the judgment, the DCA rejected the attorney’s contention that the finder’s fee was not the elder’s property because it had been paid to him by the lender and not by the elder.

The trustee of elders’ trust and the conservator of elders’ estates brought an action for elder financial abuse against elders’ daughter for undue influence in obtaining title to elders’ property. After a bench trial, the court found in favor of plaintiffs and awarded damages, attorney’s fees, trustee’s fees, and conservator’s fees. On appeal, the 2nd DCA reversed. With regard to the trustee’s fees, the court held that while W & I Code § 15657.5(a) expressly provides that the term costs “includes, but is not limited to, reasonable fees for the services of a conservator,” no similar provision authorizes an award of trustee fees, and therefore it was reversible error for the trial court to award trustee's fees.

This is a physical not a financial abuse case in which an elder died as a result of care he received at a skilled nursing facility. A jury found, by clear and convincing evidence, that caregivers acted recklessly but found causation only by a preponderance of the evidence; thereafter, the court denied plaintiffs’ motion for attorney’s fees. In affirming the decision, the DCA rejected plaintiffs’ argument that EADACPA does not create an independent cause of action. In doing so, the second DCA criticized its own earlier language in Berkley v. Dowds (2007) 152 Cal.App.4th 518, in which it stated that “[t]he Act does not create a cause of action as such” and expressly held that it does create an independent cause of action. Plaintiffs’ petition for review was thereafter denied by the Supreme Court.

Elder died leaving her entire estate to her paid live-in companion of about two years. The companion petitioned to probate the will. The will was contested and petitions to invalid the trusts and other transfers were filed. The trial court found that the companion exercised undue influence and that the elder lacked capacity when she executed the trusts and transfers. The court also found that the companion was a care custodian within the meaning of Probate Code § 21350, and as such, was disqualified as a beneficiary of the elder’s testamentary instruments. On appeal, the companion asserted that she was not a care custodian as a matter of law because (1) she had a personal relationship with the elder; (2) she was not a professional caregiver; and (3) she did not provide the kind of services which define a care custodian's role. The DCA affirmed the trial court decision, relying principally on Bernard v. Foley (2006) 39 Cal.4th 794.

In 2002, conservator was appointed for an elderly couple who resided at a retirement “hotel.” In 2003, conservator filed a petition in the probate court seeking protective orders against various family members and employees of the hotel, apparently alleging physical abuse, neglect, and financial abuse. The petition was denied without prejudice. In early 2004, conservator filed a complaint in the probate court seeking compensatory and punitive damages and other relief. The court determined the matter should be tried as a general civil action because punitive damages based on claims of elder abuse were asserted, and without notice or hearing, dismissed the complaint without prejudice. Conservator appealed the dismissal. In reversing the dismissal, the DCA observed that W & I Code § 15657.3 authorizes the probate court to hear civil action alleging elder abuse where a conservator has been appointed. While subsection (b) permits the probate court to transfer the matter to a general civil court, it does not authorize its dismissal. Although the court may dismiss a matter on its own motion and without notice in certain limited circumstances, a dismissal here would be inconsistent with both the general purposes of EADACPA and the specific text of W & I Code § 15657.3.

Attorney successfully represented two elders in separate elder abuse actions. In the first matter, the total estate was approximately $370,000 and the attorney requested fees of $72,537.14; the probate court awarded $64,000. In the second matter, the total estate was approximately $130,000 and the attorney requested fees of $82,515; the court awarded $69,000. Attorney appealed arguing that the court had abused its discretion in considering the size of the estates in deciding to reduce the fee award. The DCA affirmed the orders citing W & I Code § 15657.1 and Rule of Professional Conduct 4-200(B)(5).