Are Attorney Fees Recoverable in Financial Elder Abuse Cases if There Are No Economic Damages?

By Kenneth L. Heisz, Esq,

Yes. In a recent decision, the California appellate court in Arace v. Medico Investments, LLC ---Cal.Rptr.3d---, 2020 WL 2319120, 20 Cal. Daily Op. Serv. 4299, held that reasonable attorney fees is mandatory on a claim for financial elder abuse even if there is no award for economic or noneconomic damages.

Plaintiff/respondent Melani Arace was the personal representative and successor in interest for Grace Miller (Miller) and trustee of Miller’s trust. Arace filed a lawsuit for elder abuse against Medico Investments, LLC (Medico), a residential care facility, and others, including a Medico employee (Colon).

In 2010, Miller became a resident of Foremost Senior Campus (Foremost), a residential care facility, where Colon was an employee. In 2012, Medico purchased Foremost and retained Colon as the administrator. Subsequently, Medico learned that Colon had a durable power of attorney over Miller’s property and health care decisions. In 2014, Colon moved Miller out of Medico and into a private home.

In late 2014, Arace discovered that Colon controlled Miller’s finances. In response to Arace’s demand, Colon surrendered the power of attorney and returned $145,885.90 of Miller’s money, which Colon had deposited into her own personal bank account. Arace filed the complaint for damages against Medico and others based upon various causes of action, including a claim for financial abuse and a claim for neglect.

Arace’s claims were tried before a jury. The jury found in favor of Arace on her claim for financial abuse, but found no economic or noneconomic damages. The jury also found in Arace’s favor on her claim for neglect, and assessed $32,296.32 in economic damages and $0 in noneconomic damages. Moreover, the trial court awarded Arace $89,410 in attorney fees and $20,995.36 in costs.

Medico appealed the award of attorney fees and costs on the financial abuse claim. On appeal, Medico argued that “the court should [not] deviate from the fundamental rule which requires that a plaintiff suffer actual damages before it is deemed a prevailing party entitled to recover attorney’s fees and costs.”

The appellate court disagreed. In reviewing the Elder Abuse and Dependent Adult Civil Protection Act, the appellate court cited the relevant language of the statute as follows: “the court shall award to the plaintiff reasonable attorney’s fees and costs.” (Welfare & Institutions Code § 15657.5(a).) Therefore, the appellate court concluded that, “[u]nder the plain language of the statute, an award of attorney fees is a mandatory form of relief regardless of whether the plaintiff is awarded any other form of relief.”