Daily Blast May 21, 2012

On May 21, 2012, the Fifth Appellate District Court of Appeal (Fresno) filed an opinion in Bickel v. Sunrise Assisted Living (May 21, 2012, F062443) ___ Cal.App.4th ___, holding that a waiver clause in a residency agreement of the plaintiff’s statutory right to recover attorney fees under Welfare and Institutions Code Section 15657 violates public policy. (Slip opn., p. 14.) The holding in this case dispenses with clauses waiving statutory attorney fees, but affirms a trial court ruling severing such a clause from an otherwise valid arbitration agreement. Giving some good with the bad, the court includes strong language reinforcing that attorney fees under the Elder Abuse Act are only available if the plaintiff meets the elevated burden necessary to establish reprehensible conduct.

The plaintiff filed a lawsuit alleging that defendant violated the Elder Abuse Act concerning its care of plaintiff while she was a resident at defendant’s assisted living facility. (Slip opn., p. 2.) Since the plaintiff entered into a residency agreement that included an arbitration clause, defendant petitioned the trial court to compel arbitration. (Ibid.) The trial court granted the petition, but severed a provision of the arbitration clause that specified that each party would bear their own attorney fees and costs in the arbitration. (Ibid.) The case then proceeded to arbitration and the arbitrator found clear and convincing evidence of elder abuse and awarded $666,725.30 in attorney fees and $94,694.70 in costs. (Ibid.) After the award was confirmed and judgment was entered, defendant appealed challenging the trial court’s decision to sever the provision regarding attorney fees and costs. (Ibid.)

The Court of Appeal affirmed the judgment holding that the waiver was contrary to public policy. (Slip opn., pp. 2-3.) The court explained that the waiver was in violation of public policy because “in enacting section 15657 the Legislature intended to implement the important public purpose of protecting elders and dependent adults from egregious abuse and neglect, and because the means it employed to accomplish that purpose was the creation of enhanced civil remedies—of which the right to recover attorney fees and costs was an essential part.” (Id. at p. 14.)

The opinion provides a good discussion of the purpose of the enhanced civil remedies in section 15657, which was to create civil incentives for attorneys to represent victims of egregious abuse and neglect. (Slip opn., p. 11.) The opinion also has some helpful language regarding elevated standard by which plaintiffs must prove their claim to avail themselves of the heightened remedies under the Elder Abuse Act:

As should be obvious by the terms of section 15657, it is not an ordinary attorney fees statute. A plaintiff is not entitled to attorney fees under section 15657 by merely proving the existence of elder abuse or neglect. Rather, attorney fees recovery and other heightened civil remedies are reserved for those cases where a plaintiff is able to prove by an elevated standard (“clear and convincing evidence”) that the defendant (i) committed abuse or neglect under the Elder Abuse Act, and (ii) was guilty of recklessness, oppression, fraud, or malice in the commission of such abuse. Thus, a plaintiff is entitled to attorney fees only in cases of reprehensible wrongdoing.

(Slip opn., p. 13, emphasis in original.)

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