On October 28, 2011, Judge Timothy Taylor of the San Diego County Superior Court issued an order denying the motion for summary judgment filed by a caregiver referral agency and its principal, in a lawsuit filed by an elderly woman against the company for referring a caregiver with a criminal history. The Court issued a tentative opinion, which it then adopted as its final order. The caregiver had previously been convicted criminally of fraud, which was known to the caregiver referral agency but was not disclosed to plaintiff or her family. In addition, years earlier, the agency’s hiring coordinator had previously filed for a civil harassment temporary restraining order against the caregiver, a fact that also was not disclosed to plaintiff or her family. After being referred to the plaintiff, the caregiver stole approximately $70,000 from the plaintiff in a six month period, after gaining control of her ATM debit card and PIN. At the time, the plaintiff was 85 years old and suffering from early stage Alzheimer’s syndrome.
In its Order, the Court stated in relevant part:
The motion for summary judgment is denied, as the court perceives triable issues of material fact as well as credibility issues with respect to [defendant’s witnesses] which can only be resolved though a trial on the merits. . . . . The court finds this case to be distinguishable from Das v. Bank of America, 186 Cal. App. 4th 727 (2010), upon which defendant relies heavily. Moreover, the law in the area of the elder abuse statute continues to develop, and this case should proceed to appellate review on a complete factual record.
The legal issue decided by the Court was whether the referral agency “assisted in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both”.California Welfare & Institutions Code (“W&I Code”) sec. 15610.30(a)(2). There was no evidence that the referral agency or its principal actually knew that the caregiver was stealing money from the plaintiff. Plaintiff argued that, for purposes of W&I Code sec. 15610.30(a)(2), the term “assists” has been construed to mean “aiding and abetting”, and that under the law of aiding and abetting, because of the agency’s knowledge of, among other things, the caregiver’s criminal history which it failed to disclose to plaintiff, a jury could reasonable infer that the agency, by referring and recommending the caregiver, knowingly gave substantial assistance to the caregiver in exploiting and financially abusing the plaintiff.
The case is Shallies v. Chaimathou Manykham, et al., Case No. 37-2010-00094244-CU-NP-CTL. The Mauriello Law Firm served as plaintiff’s counsel along with San Diego law firm, Law Offices of Thomas Molta.