Cite as E071194
Filed March 24, 2020, Certified for Publication May 11, 2020, Fourth District, Div. Two
By Matt Owens
Withers Bergman LLP
Headnote: Financial Elder Abuse – Attorney’s Fees
Summary: Upon a finding of financial elder abuse, an award of attorney’s fees is mandatory regardless of whether damages are awarded.
Miller lived for four years at a residential care facility called Medico. Colon, an employee at Medico, developed a relationship with Miller. Three years after Miller moved into the facility, Colon obtained a power of attorney over Miller’s finances and health care. When Miller’s great-niece, Arace, discovered this she demanded that Colon surrender the power of attorney and about $145,000 of Miller’s money that Colon had deposited into her personal bank account. Colon complied, and returned the money. Acting as successor trustee of Miller’s trust and personal representative of Miller’s estate, Arace sued Colon and Medico. The case was tried before a jury and the special verdict form contained three causes of action: financial elder abuse, neglect, and negligence. The jury found in favor of Arace on all three causes action, but only awarded damages for neglect. Arace was awarded damages, attorney’s fees, and costs. Medico appealed.
The court of appeal affirmed. Medico contended the award of attorney’s fees was improper because no damages were awarded on the financial elder abuse cause of action, and therefore Arace should not have been treated as the prevailing party on that cause of action. The court of appeal disagreed because the attorney fee shifting statute for financial elder abuse is not discretionary. By statute, the court is required to award attorney’s fees and costs where it is proven by a preponderance of evidence that a defendant is liable for financial elder abuse. Once Medico was found liable for financial elder abuse, an attorney fee award was mandatory regardless of whether Arace was awarded any other relief.