Probate Code 859 provides for an award of double damages if the court finds that the defendant son has in bad faith wrongfully taken . . . property belonging to a . . . dependent adult, . . . or has taken . . . the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Welf. & Inst. 15610.30. Section 15610.30 defines financial elder abuse as (1) taking real or personal property of an elder “for a wrongful use or with intent to defraud”; (2) assisting in the same; and (3) taking “real or personal property of an elder . . . by undue influence, which section 15610.70 defines to mean “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” This decision reads these statutes together to require bad faith undue influence as a prerequisite for the award of double damages under Prob. Code 859 even under its final reference to financial abuse. Otherwise, the financial elder abuse alternative in section 859 would render that section’s second alternative largely superfluous.
No. G056353, 2019 Cal. App. LEXIS 865 (Ct. App. Sep. 13, 2019)