July 8th, 2014

Conservatorship of McQueen (July 7, 2014)

On July 7, the State Supreme Court issued its opinion in McQueen, which examined whether more restrictive provisions in the Code of Civil Procedure allowing for enforcement of judgment when in conflict, would supersede provisions in the Elder Abuse Act (see Welf. & Inst. Code §15657; 15657.5).

The successful plaintiff had sought attorney fees for the cost of defending the judgment which included findings of elder abuse.  In time, the defendant paid the judgment in full, and relied on provisions in the Code of Civil Procedure providing for attorney fees on appeal which precluded an award of attorney fees after the judgment was satisfied.

Even more interesting, the successful plaintiff had also initiated an action under the Fraudulent Conveyance Act and sought attorney fees incurred in that action, even after the judgment was paid in full.

McQueen held that as to fees incurred in defending the elder abuse judgment fees would be recovered even though the judgment had been paid in full, as provided in §15657.  Attorney fees for the fraudulent conveyance action would not be allowed, based on the restriction in the Code of Civil Procedure on attorney fees following satisfaction of the judgment.

Comment: McQueen makes perfect sense, but could set of a race between the movant seeking an award of attorney fees in a fraudulent conveyance action on one hand, and an alert defendant who, fearing an adverse ruling could satisfy the judgment in order to ward off levy and judicial sale or property even during the appellate process, and continue with the appeal.

April 28th, 2014

Winn v. Pioneer Medical Group

As the field of Elder Abuse litigation has grown, the medical industry has employed expert appellate counsel who, principally through the use of amicus briefs in appellate proceedings, have steered the development of the law of elder abuse into the narrow straits where it appears that actual custody of the elder is a prerequisite to liability under the Act.  This effort paid off in Delaney v. Baker (1999) 20 Cal. 4th 23 where the Court held that the Act applied even to licensed health care providers, but the Court appeared to find that the Act’s intent was to address only custodial abuse.

That limitation on the scope of the Act is the issue now pending before the Supreme Court in Winn v. Pioneer Medical Group and Winn appears to be fully briefed.  The decision in Winn will determine whether the Act will apply to those non-custodial defendants such as doctors, home health agencies, hospice services, etc., and to managed care entities such as medical groups and HMOs which – although having no actual custodial relationship with the elder – may engage in practices which effectively deny reasonably necessary medical care to elders.

April 28th, 2014

The Balisok Blog

A place where those who apply California’s Elder Abuse Act to address neglect and abuse of our parents and grandparents can support each other and explore the Elder Abuse Act’s possibilities.

Personal note:

I’ve seen the development of the law and the progression of judicial attitude toward elder abuse since I first began litigating elder abuse claims in 1983.  When I started, no one was taking these cases and certainly no one was taking them seriously.  There was no effective judicial remedy even for egregious conduct causing horrifying injury and despair.  Judges openly scoffed at lawsuits alleging such conduct.  With the enactment of the Elder Abuse Act in 1991, judicial attitudes slowly changed and such suits were welcomed where they had been rejected. 

Over time, the plaintiff’s bar became alerted to these changes in the law and judicial attitudes.  Annual conferences hosted by California Advocates for Nursing Home Reform (“CANHR”) helped to improve the level of practice by the Plaintiff’s bar.  The defense bar scrambled to catch up and their level of practice has come to match or exceed the Plaintiff’s bar. 

This blog is a work in progress.  I hope to have a confidential space for registered participants, but until then, let’s see what we can accomplish together.

Thank you,

Russell Balisok