Governor Preserves Evidentiary Standards for Elder Abuse

Governor Edmund G. Brown Jr yesterday vetoed a California Chamber of Commerce-opposed bill that would have made it easier for plaintiff’s attorneys to attempt to circumvent the limits on non-economic damages and attorney’s fees under the Medical Injury Compensation Reform Act (MICRA).

CalChamber participated in a coalition led by health organizations in opposing  AB 859 (Eggman; D-Stockton) because it would have lowered the standard of proof for claims of elder physical abuse or neglect made against a skilled nursing facility or resident care facility for the elderly when a judge has found intentional destruction of evidence.

“Intentional destruction or concealment of evidence, known as spoliation, is illegal,” Governor Brown wrote in his veto message. “Currently when judges find spoliation, they have numerous sanctions at their disposal which they can impose against an offending party. In appropriate circumstances, this will facilitate establishing a claim of abuse.”

This bill would have added new incentives and tactics for attorneys to include claims of elder abuse in every complaint and pursue numerous spoliation mentions in order to skirt MICRA, and secure attorney fees, costs and uncapped punitive damages.

In their final letter to the Assembly the coalition members explained that AB 859 was unnecessary because there are already existing remedies in law.  AB 859 did not solve any purported problem because there is not an issue that needs to be fixed, nor does the bill have anything to do with protecting seniors and California’s civil court system.

AB 859 also would have applied an unfair and unequal standard to plaintiffs and defendants. Under AB 859, a plaintiff’s attorney who destroys evidence would not be penalized. This bill would apply only to a defendant, unfairly tipping the scale of justice. AB 859 would have created unlimited incentives for the plaintiff’s attorney to file frivolous and pervasive motions and drive up litigation costs, and put another strain on the Medi-Cal program and General Fund.

Given the existing law, the Governor closed his veto message, “I don’t believe changing the standard of proof is warranted.”

Staff Contact: Jennifer Barrera

Jennifer Barrera
Jennifer Barrera took over as president and chief executive officer of the California Chamber of Commerce on October 1, 2021. Previously, she oversaw the development and implementation of policy and strategy as executive vice president and represented the CalChamber on legal reform issues. She led CalChamber advocacy on labor and employment and taxation from September 2010 through the end of 2017. As senior policy advocate in 2017, she worked with the executive vice president in developing policy strategy. Before joining the CalChamber, she worked at a statewide law firm that specializes in labor/employment defense. Barrera earned a B.A. in English from California State University, Bakersfield, and a J.D. with high honors from California Western School of Law. See full bio.