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AB-859 Elder and dependent adults: abuse or neglect.(2017-2018)

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Date Published: 02/16/2017 02:00 PM
AB859:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 859


Introduced by Assembly Member Eggman

February 16, 2017


An act to amend Section 15657 of, and to add Section 15657.02 to, the Welfare and Institutions Code, relating to elder and dependent adults.


LEGISLATIVE COUNSEL'S DIGEST


AB 859, as introduced, Eggman. Elder and dependent adults: abuse or neglect.
Existing law, the Elder Abuse and Dependent Adult Civil Protection Act, provides for the award of attorney’s fees and costs to, and the recovery of damages by, a plaintiff when it is proven by clear and convincing evidence that the defendant is liable for physical abuse or neglect, and the defendant has also been found guilty of recklessness, oppression, fraud, or malice in the commission of that abuse.
The bill would apply a preponderance of the evidence standard to any case brought under this act that alleges physical abuse or neglect upon circumstances in which spoliation of evidence has been committed by the defendant, as specified. The bill would make conforming changes to a related provision.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 15657 of the Welfare and Institutions Code is amended to read:

15657.
 Where it is proven by clear and convincing evidence evidence, or by a preponderance of the evidence pursuant to Section 15657.02, that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.

SEC. 2.

 Section 15657.02 is added to the Welfare and Institutions Code, to read:

15657.02.
 Notwithstanding any other law, the standard of evidence in any case brought under this act that alleges physical abuse or neglect shall be a preponderance of the evidence under either of the following circumstances:
(a) The plaintiff prevails on a discovery motion pursuant to subdivision (b) of Section 2023.030 of the Code of Civil Procedure due to spoliation of evidence by the defendant.
(b) A judge or arbitrator determines at any point during litigation or arbitration that spoliation of evidence has been committed by the defendant.