Second District So Holds In Case of First Impression Statutory Interpretation of Welfare and Institutions Code section 15657.
Welfare and Institutions Code section 15657 provides that a defendant proven liable for physical abuse or neglect under prior sections of the Elder Abuse Act, where the commission of the abuse was done with “recklessness, oppression, fraud, or malice,” has mandatory exposure to imposition of a fee award in favor of plaintiff if liability is demonstrated by clear and convincing evidence.
In the case summarized below, plaintiff won a jury verdict on an elder abuse claim and against the pertinent defendant for $300,000, which was remitted to $250,000 under another statutory provision but then increased to $271,711.33 with the addition of prejudgment interest. In an ironic twist that proved crucial, plaintiff lobbied the trial judge to instruct jurors that causation need only be demonstrated by a preponderance of the evidence, with the jury finding causation under this burden of proof (but did not find causation by clear and convincing evidence). Plaintiff nevertheless moved for $781,945.25 in attorney’s fees under section 15657, a request denied in entirety by the trial judge. (MISSION STATEMENT CROSS-OVER—Given the size of the fee award requested, this certainly resonates a message we have stressed often about fees being the proverbial tail that wags the dog.)
Plaintiff appealed, but the Second District affirmed the fee denial order in Perlin v. Fountain View Mgt., Inc., Case No. B193182 (2d Dist., Div. 5 June 2, 2008) (published, 3-0 decision authored by Justice Mosk).
The trial judge denied fees on the ground that showing only recklessness—rather than also showing “oppression, fraud, or malice”—by clear and convincing evidence did not suffice. Although deciding on other grounds and expressly eschewing a decision on the trial court’s reasoning, the Court of Appeal did seem to indicate that it was error to deny fees on this ground, suggesting that recklessness may be an independent predicate for fees even in the absence of malicious-type conduct. (See Slip Opn., at 21-22 & 22 n.6.)
However, the appellate court found that the jury’s failure to find causation by clear and convincing evidence was fatal. It dismissed plaintiff’s argument that causation is distinct from liability and can be established under the preponderance standard, after a very scholarly review of the structure of the Elder Abuse Act and recent California Supreme Court decisions discussing the Act. (Slip Opn., at 21-25.)
Plaintiff’s fallback argument was to urge that a retrial was warranted because the jury could not reach a verdict on that issue. No, said the Court of Appeal. Reason: the doctrine of invited error. Plaintiff was responsible for the erroneous preponderance instruction on the causation issue (which led to the inconclusive jury verdict) “and may not take advantage of the error by obtaining a new trial” for purposes of proving causation by clear and convincing evidence. (Slip Opn., at 26-27.)
The Court of Appeal used the de novo review standard, finding that it was dealing primarily with an issue of statutory interpretation. Very interesting decision on a first impression matter of interpreting section 15657.