TIMING IS EVERYTHING: WHAT IS THE PERIOD OF LIMITATIONS FOR ELDER FINANCIAL ABUSE ACTIONS?

Steven Riess^*

I. INTRODUCTION

What is the statute of limitations for elder financial abuse actions? The Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA", Welf. & Inst. Code § 15600 et seq.) does not specify a period of limitations for elder financial abuse actions. However, since an action for elder financial abuse is an action upon a statute, either the one year period of Code of Civil Procedure Section 340(a) or the three year period of Code of Civil Procedure Section § 338(a) applies. The one-year statute applies to actions which seek civil penalties while the three year statute applies to actions which seek remedies other than civil penalties. Punitive damages may sometimes be recovered in elder financial abuse actions. While punitive damages and civil penalties share similar characteristics, they are distinct legal concepts. Furthermore, even where it is clear that an action seeks civil penalties, the one year statute of limitations does not apply where the award of such penalties is discretionary rather than mandatory. Because punitive damages are distinct from civil penalties and because they are always discretionary, the three year statute of limitations should apply. However, no appellate decision has yet resolved which period of limitations applies.

II. AN ACTION FOR ELDER FINANCIAL ABUSE IS AN ACTION UPON A STATUTE, AND THEREFORE EITHER THE ONE YEAR PERIOD OF C.C.P. § 340(a) OR THE THREE YEAR PERIOD OF C.C.P. § 338(a) APPLIES