Proprietor’s Ratification Triggered Fee Liability to Conservator When House Sold For Less Than Its Fair Market Value.
Welfare and Institutions Code section 15657.5 has a mandatory fee-shifting provision that authorizes an award of reasonable attorney’s fees and costs (including conservator’s fees devoted to litigation) when a defendant is proven liable for financial abuse of an elder under section 15610.30. Civil Code section 3294(b) is the provision that makes an employer liable for punitive damages if employer ratified an employee’s wrongful conduct, which has applicability under section 15657.5(b). This latter provision states that no attorney’s fees can be assessed against any employer unless the Civil Code section 3294(b) imputation standards are met. All these provisions came into play and produced the fee award that was sustained on appeal in the case we next discuss.
In Vilchez v. Seville Properties, Case No. B196779 (2d Dist., Div. 8 Aug. 22, 2008) (unpublished), Ungo, the sole proprietor of a brokerage business, was found liable for damages in $50,000 to a conservator for having ratified his employee’s actions in selling the incompetent conservatee’s home for less than its fair market value. The trial court also awarded $50,549.30 in attorney’s fees, costs, and conservator’s fees to conservator, who had earlier attempted to rescind the sale without success, expressly determining that the financial abuse against conservatee was reckless, oppressive, fraudulent and malicious in nature. (The breakdown was $40,218.75 in attorney’s fees, $8,020.55 in costs, and $2,310 in conservator’s fees.) The fees were awarded under section 15657.5. Ungo appealed. He untimely appealed the compensatory judgment, but did separately—and timely—appeal the adverse fee award. (BLOG NOTE—Under our “Cases: Appealability” topical section, we have discussed past decisions recognizing that fee awards are separately appealable, repeatedly noting that failure to separately appeal fee orders may result in the appellate court determining it lacks jurisdiction to consider the fee award challenges. Here, the appellant was dilatory on the merits appeal, but timely with respect to challenging the fee award.)
Ungo lost his challenges on appeal to the fee award.
First, Ungo’s reliance on Welfare and Institutions Code section 15657, which deals with elder physical abuse or neglect, was inapposite because this case concerned elder financial abuse, which triggered the section 15657.5 fee-shifting statute.
Second, attorney’s fees were warranted against Ungo, because the evidence did show he ratified the conduct of his employees—he reviewed his employee’s listing agreement and discussed conservatee’s condition with the employees, he made no further investigation, and he ignored conservator’s rescission request. Fees were properly awardable under section 15657.5(b), based on substantial evidence supporting the ratification of conduct under Civil Code section 3294(b).