Civ. C. 3294 Fraud, malice or oppression
Fraud- Constructive fraud Constructive fraud exist in any breach of duty which without an actually fraudulent intent, gains advantage to the person in fault, or one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claim in under him, Civ C 1573
Elderly or Frail Vitim in tort or contraact actions for financial abuse in actions for physicaal abuse or neglect.
Commission of aa tort or breach of contract. Financial abuse may be based on totious conduct or perhpas on duties arising out of a contract. For this reason legal principles relating to elderly or frail victims in tort or contract. There are two general categories of fiduciary relationship. One arises from the relationship of the parties and the law assigns fiduciary duties in those cases or deems that relationship to be a fiduciary relationship. Deemed fiduciary relationship that the law deems to be fiduciary. The relationship fiduciary owes a duty to utmost good faith as a matter of law. Cal.Jur.3d Fraud and Deceit 11. If the defendant stands in one of these relationships with the victim, the age, infirmity or diminished capacity, ext In shor the vulnerability of the victim -is not the essential to establishing a fiduciary relationship
Example of this was when I called NOVA the national organization for victims and asked how we could get the autopsy and sheriff report. They insisted that the victim advocate should be handling that for us. They would not do anything untill they spoke to Kim and had her handle it.
DA Victim Advocate-Fiduciary Duty-Essential elements of a confidential relationship: Generally the essence of a confidential relationship depends on whether the plaintiff actual reposed trust and confidence in the other, and whether the other accepted such trust and confidence.
1. the vulnerability of one party to the other which, 2 results in the empowerment of the stronger party by the weaker which 3 empowerment has been solicited or accepted by the stronger party and 4 prevents the weaker party from effectively protecting itself.
Test -Was the victim vulnerable, would she have ability without victim advocate to be effective in getting help and dealing with the sheriff and DA. Was she obligated to report the misconduct?
The report of the issue of lost income and no restitution, along with the disclosure of high cost medical issue with chronic health condition. Kim knowing that Lee Frank should have received medical and Counseling , along with elder death review. The loss of income was significant
Neglect
- The refusal or failure of an individual to fulfill any part of his or her duties or obligations to an older person, including failing to provide an older person with
- necessities such as food, shelter, personal safety, clothing, medicine, and needed care. Neglect may also include the failure of a person who has financial
- responsibilities to provide care such as paying for needed home care services or the
- failure of an in-home paid care provider to deliver needed care.
