Daily Blast - May 15, 2020 - Lewis Brisbois Bisgaard & Smith LLP

The attorney fee provision in financial elder abuse cases in California was given a boost on Monday, May 11, 2020, when the Fourth District Court of Appeal, Division Two (Riverside) decided to partially publish its decision in Arace v. Medico Investments, LLC , 2020 Cal.App. LEXIS 397. In this financial and neglect elder abuse case, the published part of the decision holds that “an award of attorney fees is a mandatory form of relief regardless of whether the plaintiff is awarded any other form of relief.” (Arace, at *8.)

In Arace, the jury found the defendant misappropriated plaintiff’s money, but assessed no economic or noneconomic damages. The jury also found defendant acted with recklessness, oppression, or fraud. The jury awarded money damages on plaintiff’s Elder Abuse-Neglect cause of action and found defendant had been negligent, but its negligence was not a substantial factor in causing harm to plaintiff.

In a very brief opinion, the court disagreed with defendant’s contention that a plaintiff must suffer actual damages before being deemed a prevailing party to recover attorney’s fess and costs. (Id., at *7/) The jury’s conclusion that defendant was liable for misappropriation and that its conduct was a substantial factor in causing harm to plaintiff was sufficient to mandate an award of attorney fees under Welfare & Institutions Code §15657.5, even though no damages were proved.

The opinion was initially unpublished. The Court of Appeal changed its mind after six amicus letters urging the Court of Appeal to publish its opinion were filed by Senior Advocacy Services, the California Long Term Care Ombudsman Association, the Institute on Aging, California Advocates for Nursing Home Reform, Legal Assistance for Seniors and law firm Galanti and Copenhauer.