In re Conservatorship of Gregory

• Decision Date: 01 May 2000
• Docket Number: No. C030074.,No. C030733.,C030074.,C030733.
• Citation: 95 Cal.Rptr.2d 336,80 Cal.App.4th 514
• Parties: CONSERVATORSHIP OF the Person and Estate of Reba GREGORY. Christine Sandahl, as Conservator, etc., Plaintiff and Appellant, v. Beverly Enterprises, Inc., et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

95 Cal.Rptr.2d 336

80 Cal.App.4th 514

CONSERVATORSHIP OF the Person and Estate of Reba GREGORY Christine Sandahl, as Conservator, etc., Plaintiff and Appellant, v. Beverly Enterprises, Inc., et al., Defendants and Appellants.

No. C030074.

No. C030733.

Court of Appeal, Third District.

May 1, 2000.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing May 30, 2000.

Review Denied August 23, 2000.

Eisen & Johnston, Jay-Allen Eisen, Sacramento, Luce, Forward, Hamilton & Scripps, Christopher J. Healey, San Diego, and Michael D. Thamer, Yreka, for Plaintiff and Appellant.

Gibson, Dunn & Crutcher, Kevin S. Rosen, Rory M. Hernandez, Los Angeles, David Pendarvis, San Diego, Theodore B.

Olson, Theodore J. Boutrous, Jr., Los Angeles, and Nancy E. Hudgins, San Francisco, for Defendants and Appellants.

CALLAHAN, J.

On January 31, 1995, 66-year-old plaintiff Reba Gregory broke her hip and shoulder in a fall at Beverly Manor, a nursing home in Yreka. Gregory, through her daughter and conservator, Christine Sandahl, sued defendants Beverly Enterprises, Inc. (BEI), Beverly Enterprises-California, Inc., Beverly Health and Rehabilitation Services, Inc. (BHRS), and Chuck Williams for elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.Code, § 15600 et seq.) (Elder Abuse Act), negligence, and fraud. Her complaint sought compensatory damages, punitive damages, and attorney fees.¹

The jury returned special verdicts in favor of Gregory on all three causes of action, and found defendants acted with malice, oppression, or fraud with respect to the claims of elder abuse and fraud. It awarded Gregory $365,580.71 in compensatory damages, and $94,720,450 in punitive damages.

On defendants' motion, the court conditionally granted a new trial unless Gregory accepted reduction of compensatory damages to $124,480.57, and reduction of punitive damages to $3 million. Gregory accepted the remittitur. The court then awarded Gregory attorney fees in the amount of $517,927.50 under the Elder Abuse Act.

In these consolidated appeals, defendants appeal: (1) in case No. C030074 from the judgment on special verdict, and the court's rulings on their motions for partial judgment notwithstanding the verdict and for new trial; and (2) in case No. C030733 from the court's ruling on Gregory's application for attorney fees and costs. Gregory cross-appeals on the issue of attorney fees and costs.

On their part, defendants argue: (1) they are entitled to judgment as a matter of law, or a new trial, on the elder abuse claim; (2) they are entitled to judgment as a matter of law on the fraud claim; (3) there is no clear and convincing evidence of malice, oppression, or fraud to support punitive damages; (4) the punitive damage award is excessive under state and federal law; (5) jury misconduct, prejudicial media coverage, evidentiary and instructional errors, and cumulative error require a new trial; and (6) Gregory is not entitled to attorney fees under any theory. On cross-appeal, Gregory contends: (1) she is entitled to either statutory or contractual attorney fees; and (2) the court erred in denying compensation for the cost of para-legals and other litigation support.

With respect to defendants' appeal in case No. C030074, we affirm the judgment. In Gregory's cross-appeal in case No. C030733, we reverse the order denying compensation for paralegal fees, and remand the matter for proceedings consistent with this opinion. In all other respects, the order is affirmed.

FACTUAL BACKGROUND^**

DISCUSSION

I^**

B. Jury Instructions:

Following a discussion regarding jury instructions at the end of the trial, defendants placed on the record their general objection to "any instruction that was not proposed by the defendants." Earlier in the discussion, they specifically objected to the use of state and federal regulations to define the standard of nursing home care. Citing Klein v. BIA Hotel Corp. (1996) 41 Cal.App.4th 1133, 49 Cal.Rptr.2d 60, a case alleging negligence per se based on violation of regulations found in title 22 of the California Code of Regulations, the court denied defendants' request to strike those instructions.

The court proceeded to instruct the jury in the language of Welfare and Institutions Code section 15610.07 that "[a]buse of an elder or dependent adult means physical abuse, neglect, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a custodian of goods and services which are necessary to avoid physical harm or mental suffering." It then described how "[p]atients of skilled nursing facilities shall be treated and cared for" by reading portions of state statutes, and state and federal regulations governing patients' rights and patient care in skilled nursing facilities. (Health & Saf. Code, §§ 100275, subd. (a) (formerly § 208, subd. (a)), 1275, 1599.1; Cal.Code Regs., tit. 22, §§ 72315, 72528; 42 C.F.R. §§ 483.10, 483.15, 483.25 [applicable to skilled nursing facilities participating in Medicaid].)

The court also instructed the jury that "[i]n considering the term ... reckless neglect ... the term `recklessness' requires that the defendant have knowledge of a high degree of probability that dangerous consequences will result from his or her conduct and acts with deliberate disregard of that probability or with a conscious disregard of the probable consequences. [¶] Recklessness requires conduct more culpable than mere negligence."

1. Definitions of "Physical Abuse" and "Neglect":

"Generally speaking if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and ground for reversal." (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670, 117 Cal.Rptr. 1, 527 P.2d 353.) Defendants argue the instruction on elder abuse based on Welfare and Institutions Code section 15610.07 was incorrect as a matter of law because it omitted the statutory definitions of "physical abuse" and "neglect" contained in Welfare and Institutions Code sections 15610.57 and 15610.63.⁸ They assert this erroneous instruction, combined with vague instructions based on administrative regulations, allowed the jury to transform a simple negligence case involving Reba Gregory into a referendum on anything that happened to residents of Beverly Manor at any point in time. Defendants also say the instructions left the jury with the impression elder abuse equaled negligence.

"Instructions in the language of an applicable statute are properly given." (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 280, p. 326.) Where, as here, "the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed." (Id., § 272, pp. 318-319, emphasis in original and added; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1534-1535, 254 Cal.Rptr. 492.) Defendants' failure to specifically request that the jury be instructed in accordance with Welfare and Institutions Code sections 15610.57 and 15610.63 waives the issue on appeal. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 948, 160 Cal.Rptr. 141, 603 P.2d 58, disapproved on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4, 88 Cal.Rptr.2d 19, 981 P.2d 944.) However, even assuming defendants properly raised the issue of instructional error, we conclude the instructions were correct and did not mislead the jury.

We begin with the observation that the statutory definition of neglect set forth in the first sentence of Welfare and Institutions Code section 15610.57 is substantially the same as the ordinary definition of neglect. Defendants would gain no particular advantage from an instruction that conveyed the layperson's understanding of the term. In this case, the administrative regulations incorporated into the instructions on elder abuse included numerous, specific examples of what constituted neglect in the treatment and care of nursing home patients. Each of the examples of neglect listed in Welfare and Institutions Code section 15610.57 is included in the instructions read to the jury. Contrary to defendants' characterization of the regulations as vague, the instructions formulated by the court provided concrete examples which amplified the instruction on elder abuse based on Welfare and Institutions Code section 15610.07. Accordingly, we reject defendants' claim the elder abuse instructions misled the jury and prejudiced their case.

As we explained, the court also instructed the jury on the concept of recklessness as it applied to "reckless neglect." Contrary to defendants' claim the jury was misled into believing elder abuse was equivalent to negligence, these instructions emphasized that "[i]n considering the term ... reckless neglect ... the term `recklessness' requires that the defendant have knowledge of a high degree of probability that dangerous consequences will result from his or her conduct and acts with deliberate disregard of that probability or with a conscious disregard of the probable consequences. [¶] Recklessness requires conduct more culpable than mere negligence."

Defendants suggest the language of Welfare and Institutions Code section 15610.07 is similar to statutory provisions enacted at the same time to govern reporting of suspected elder abuse, not liability. We conclude there is no basis for the claim the statutory definition of "abuse of an elder or dependent adult" is inapplicable to the case before us. Welfare and Institutions Code section 15610, added in 1994, expressly states that "[t]he definitions contained in this article shall govern the construction of this chapter, unless the context requires otherwise." (Stats.1994, ch. 594, § 3.) The "chapter," that is, chapter 11 of the Elder Abuse Act, includes articles 4 and...