The Power of “Protected Party” and Elevated Damages Legislation in California

by Jaime Levine, Elder Law Attorney

I run the Senior Legal Services program for Elder Law & Advocacy in San Diego. We are a non-profit law firm that works on Financial Elder Abuse cases. We also provide basic legal services to seniors in our community.

California has very strong laws protecting seniors – both in the civil realm and in the criminal realm. As soon as any California resident reaches the age of 65, he or she is considered to be a “protected party”. This activates many statutes that give seniors access to heightened damages, and lowers the threshold in some instances in terms of what constitutes a wrong against a victim.

One statute that is particularly effective in my practice is Civil Code §3345b. This statute establishes that any “protected party” who would be successful in a civil cause of action, is eligible to receive significantly elevated damages if a judge believes that the senior was targeted due to their vulnerability.

It is a very effective tool for any attorney who represents victimized seniors. When I write a demand letter, for example, I often structure it in such a way so as to make it clear that the risk of not returning wrongfully kept property will be potentially very expensive for an opposing party who refuses to comply.

One scenario that I see regularly is that a “friend” of a senior with resources will request a loan – often with no intention of paying it back. When the “friend” defaults, the senior will seek out legal assistance. If it appears to be a case in which the senior is being victimized due to their age, we will write a letter that states that if the money is not returned within 14 days, we will advise our client to consider legal action to recover the full amount of the loan, a penalty equal to triple the amount owed on the loan under §3345b, plus attorney fees, and any other available damages. The proposition of potentially losing a multiple of what the borrower actually owes the senior, puts enormous pressure on a possible defendant to settle immediately.

Using §3345b in conjunction with the “protected party” status of seniors is very effective. Our success rate in recovering assets without having to resort to litigation is excellent.

When I discussed this with Susan Eng last week, she suggested to me that there is concern in some jurisdictions in Canada, that singling out seniors may detrimentally affect them because they will be, in some way, infantilized. This is not something that I have seen. In fact, I have experienced the opposite; seniors are empowered by laws that give them additional damages in cases where they are being victimized due to age-related vulnerability.

My own anecdotal experience is not data, of course; but I have, over the past 11 years, assisted over 10,000 clients. The program that I run has assisted over 40,000 seniors during that time period. I cannot recall a situation in which seniors were negatively impacted by the “protected party” legislation in California. In my experience, tough senior financial elder abuse laws serve to effectively enable private bar attorneys to achieve remarkable success without having to resort to litigation. They also allow for civil remedies to compensate for the always-overstretched resources of the criminal justice system.

 

 

Text of §3345:

§3345.  (a) This section shall apply only in actions brought by, on

behalf of, or for the benefit of senior citizens or disabled persons,

as those terms are defined in subdivisions (f) and (g) of Section

1761, to redress unfair or deceptive acts or practices or unfair

methods of competition.

(b) Whenever a trier of fact is authorized by a statute to impose

either a fine, or a civil penalty or other penalty, or any other

remedy the purpose or effect of which is to punish or deter, and the

amount of the fine, penalty, or other remedy is subject to the trier

of fact’s discretion, the trier of fact shall consider all of the

following factors, in addition to other appropriate factors, in

determining the amount of fine, civil penalty or other penalty, or

other remedy to impose. Whenever the trier of fact makes an

affirmative finding in regard to one or more of the following

factors, it may impose a fine, civil penalty or other penalty, or

other remedy in an amount up to three times greater than authorized

by the statute, or, where the statute does not authorize a specific

amount, up to three times greater than the amount the trier of fact

would impose in the absence of that affirmative finding:

(1) Whether the defendant knew or should have known that his or

her conduct was directed to one or more senior citizens or disabled

persons.

(2) Whether the defendant’s conduct caused one or more senior

citizens or disabled persons to suffer: loss or encumbrance of a

primary residence, principal employment, or source of income;

substantial loss of property set aside for retirement, or for

personal or family care and maintenance; or substantial loss of

payments received under a pension or retirement plan or a government

benefits program, or assets essential to the health or welfare of the

senior citizen or disabled person.

(3) Whether one or more senior citizens or disabled persons are

substantially more vulnerable than other members of the public to the

defendant’s conduct because of age, poor health or infirmity,

impaired understanding, restricted mobility, or disability, and

actually suffered substantial physical, emotional, or economic damage

resulting from the defendant’s conduct.