Elder Abuse Victims’ Litigation Costs,

Elder Abuse Victims’ Attorneys Fees and

Access  to Justice for the Less-than-Affluent


 Draft  * * * Draft * * * Draft

CHAPTER _____  of Statutes of 2004


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



            This act shall be known and may be cited as the “Access to Justice for Elders and Dependent Adults Act.”




The Legislature finds and declares all of the following:

   (a)                   [to be drafted... See explanation below]           





Welfare and Institutions Code §15657 is amended to read as follows: 


Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or fiduciary financial[1] abuse as defined in Section 15610.30, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law:

   (a) The court shall award to the plaintiff reasonable attorney’s fees and costs.

(1) In determining reasonable attorney’s fees, the court shall consider all relevant evidence.

a.         Upon the request of plaintiff, the following non-privileged information shall be produced by opposing counsel, and shall be considered by the Court: [2]

                                                                    i.                        The hours and rates of opposing counsel, including the hours and dates when the respective services were rendered, and which hours were billed and the number of hours billed;

                                                                 ii.                        The amount of fees and costs paid or incurred to oppose plaintiff;

                                                               iii.                        The amounts paid and dates of payment;

                                                                iv.                        The parties’ fee arrangement.

b.         The term “relevant information” does not include privileged information.

(2) The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator or trustee, if any, devoted to the litigation of a claim brought under this article. , and all costs allowable under any subdivision of section 1033.5 of the Code of Civil Procedure.[3]

   (b) The limitations imposed by Section 337.34 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.




Probate Code § 2640 is amended to read as follows: 


(a) At any time after the filing of the inventory and appraisal, but not before the expiration of 90 days from the issuance of letters or any other period of time as the court for good cause orders, the guardian or conservator of the estate may petition the court for an order fixing and allowing compensation to any one or more of the following:

   (1) The guardian or conservator of the estate for services rendered to that time.

   (2) The guardian or conservator of the person for services rendered to that time.

   (3) The attorney for services rendered to that time by the attorney to the guardian or conservator of the person or estate or both.

   (b) Notice of the hearing shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

   (c) Upon the hearing, the court shall make an order allowing (1) any compensation requested in the petition the court determines is just and reasonable to the guardian or conservator of the estate for services rendered or to the guardian or conservator of the person for services rendered, or to both, and (2) any compensation requested in the petition the court determines is reasonable to the attorney for services rendered to the guardian or conservator of the person or estate or both.  The compensation allowed to the guardian or conservator of the person, the guardian or conservator of the estate, and to the attorney may, in the discretion of the court, include compensation for services rendered before the date of the order appointing the guardian or conservator.  The compensation allowed shall thereupon be charged to the estate.  Legal services for which the attorney may be compensated include those services rendered by any paralegal performing legal services under the direction and supervision of an attorney.  The petition or application for compensation shall set forth the hours spent and services performed by the paralegal.

   (d)  In determining an award of fees after the death of the ward or conservatee, where the court finds that services were performed in consonance with the fiduciary duties[4] imposed upon the person performing those services, the court shall determine a reasonable value for those services which shall not be less than the fair market value of those services.  The size of the estate of the deceased ward or conservatee shall not be a limiting factor in determining the award of fees.[5]  For the purposes of this section, the fair market value of services is the price at which a willing buyer of those services would purchase those services from a willing seller in a bona fide, arm’s-length transaction, each having reasonable knowledge of the relevant facts.  The enactment of subdivision (d) of this section is intended to overrule Conservatorship of Levitt, 93 Cal.App.4th 544, to the extent inconsistent with this subdivision.












 Explanation of the foregoing proposals


Existing Law:  Many of the protections the law purports to provide to elders and dependent adults (collectively “victims”) are ephemeral to a significant extent, because professional conservators, trustees and lawyers (collectively “Fiduciaries”) are unwilling to take meritorious difficult cases in the Probate Court.


For example, if the mentally impaired person to be “conserved” can speak clearly and appear to be competent during a brief hearing in court, most Fiduciaries are unwilling to handle such contested conservatorships.  Fiduciaries are even more reluctant to take these cases, if the proposed conservatee is being manipulated by a victimizer who is willing to spend every penny of the victim’s money to pay a lawyer to “protect” the victim’s civil “liberties” (i.e., the right to die of neglect in the shadows, penniless but with his “rights” on).


Fiduciaries often enter into court-approved settlements, which are not in the best interests of the victims, and are almost characterizable as gifts to the victimizers.  These settlements are made in response to financial pressures, i.e., the realization that the court will never award the Fiduciaries fees that will cover their time, if they continue litigating against the criminals who continue preying on the conservatees, even after a conservatorship is established.


Victimizers tend to churn elder abuse cases by stirring up trouble (to which the courts do not respond sufficiently promptly).  The victimizers force the fiduciaries to run up litigation fees and costs, consciously attempting to put financial pressure on fiduciaries.  If the fiduciaries manage to prevail against the victimizers and the fiduciaries petition the court for fees, the victimizers file objections to the fee requests made by the fiduciaries.  The victimizers typically claim that the fiduciaries churned the case.


This Bill amends Probate Code §2640 to reverse the adverse impact that the Conservatorship of Levitt, 93 Cal.App.4th 544, decision would have on access of the elderly to the courts.  This resolution also amends Welf. & Inst. Code §15657 to require a person, who has been proven (by clear and convincing evidence) to have committed tortious elder abuse (intentionally, recklessly or with malice) to disclose certain non-privileged information relevant to the determination of the successful plaintiff’s attorneys fees.













[1] This would correct a "clerical" error that occurred when Welfare and Institutions Code §15610.30 was renamed "financial abuse" instead of "fiduciary abuse". 

[2] After the abuse has been proven by clear and convincing evidence to have been committed intentionally or recklessly, the court determines the amount of attorney's fees that the guilty defendant should pay.  The court should have all relevant information, in order to make a correct decision, since the guilty defendant always claims that the plaintiff’s fees were churned and are too high.  Critical information would include (among other things) how much time the defendant’s attorneys devoted to the litigation, and how much they were paid (since they typically claim that the plaintiff's lawyer churned the case).  This information is not privileged under the following case decisions: See CEB California Attorney Fee Awards 








[3] Where abuse (of an elder or dependent adult) has been proven by clear and convincing evidence to have been committed intentionally or recklessly, the guilty defendant should pay all of the costs, so that the victim is really made whole, and so that the victim will be able to entice a lawyer or conservator to handle the case.  Costs are often the reason for taking or rejecting a case.  If a  lawyer or professional conservator does not expect to be reimbursed for costs, s/he is less likely to take a case, even if s/he believes that the victim is being abused.  There are human limits to how many cases one can take for little or no compensation.











[4] The words “consonance with the fiduciary duties” were drawn from the California Supreme Court case of Estate Of Trynin (1989) 49 Cal.3d 868, 875, which held that:  “Services  . . . are  . . . compensable [even if they do not increase the size of the estate] if the estate’s attorneys or representatives in performing the services were ‘acting in consonance with the fiduciary duties imposed upon them’ . . .” (e.g., protecting the conservatee from emotional distress by handling a “harassment” petition).

[5]   Probate courts have a tendency to award market-rate fees for increasing the size of the estate, but to award punitively-low fees for work that saves elders' lives, but takes up a lot of the court's time.  See discussion of this practice in the following appellate brief:   Levitt Opening Brief, pg. 36.    Judge Klausner's "one-third of the estate" rule, approved in Conservatorship of Levitt, deprives poor people of the Probate Court's protective umbrella.  Before professional conservators, trustees and lawyers decide to take a case to save a would-be conservatee's life, they ascertain whether the estate remaining after the rescue is likely to be significantly greater than 3 times the amount of hours (i.e., fees) the case is likely to require.  If the estate is not large enough to have a comfortable cushion, so as to sustain the fees, the case is not taken, and the victim is left to his/her own devices, i.e., to die a terrible death of abuse.  There are human limits to how many cases lawyers, professional conservators and trustee can take for little or no compensation.