ATTORNEY NEWSLETTER
New Law Addresses Spoliation Of Evidence
Lower Evidentiary Bar In Cases Involving Spoliation
Spoliation (deleting, destroying or altering evidence) is a big concern in elder abuse cases. According to the editorial board of the Sacramento Bee some years ago, a survey of 150 elder abuse cases found, for example, chart falsification in elder abuse cases against assisted care facilities. For years, the California Legislature sought to address the issue of spoliation by new laws, which either stalled or were vetoed by the Governor. Finally, in 2025, Governor Newsom signed into law an amendment to the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) that addresses the issue of spoliation of evidence in elder abuse cases. If you suspect financial elder abuse of a loved one, friend or neighbor in San Francisco, or elsewhere in California, call Ingrid M. Evans at Evans Law Firm, Inc. at (415) 441-8669, or by email at info@evanslaw.com. Our toll-free number is 1-888-50EVANS (888-503-8267).
New Law
The amendment to the Elder Abuse Act addressing the issue of spoliation reads in pertinent part as follows:
[T]he court may determine the standard of evidence in any claim for remedies sought under Section 15657 to be a preponderance of evidence [rather than clear and convincing] under either of the following circumstances:
(A) The plaintiff prevails on a discovery motion pursuant to subdivision (b) of Section 2023.030 of the Code of Civil Procedure due to spoliation of evidence by the defendant;
(B) A judge or arbitrator determines at any point during litigation or arbitration that spoliation of evidence has been committed by the defendant.
The revised law also provides a definition of spoliation[1], and provides factors for courts to consider in determining whether spoliation has occurred, including whether evidence was destroyed “[p]rior to the expiration of a legally required time period for holding the records,” “[i]n contravention of the party’s written records retention policy,” or “[a]fter receipt of a written directive to preserve relevant records.”
The Elder Abuse Act protects California seniors from all forms of elder abuse. This amendment provides a new remedy for instances where the defendant has destroyed, deleted, falsified or altered records after the fact. The court’s authority to lower the evidentiary standard where acts of spoliation are found to have occurred, provides a key tool for ensuring a senior gets justice for a defendant’s wrongdoing in such a case.
Important Remedies And Relief Under The Elder Abuse Act
In addition to the new law discussed above, there are several important remedies under the Elder Abuse Act for victims of elder abuse:
First: A plaintiff is authorized to seek the provisional remedies of attachments and protective orders pursuant to the Elder Abuse Act. Cal. Welf. & Inst. Code § 15657.01 (writ of attachment), 15657.03 (protective orders). If real property is involved, plaintiff can record a lis pendens (notice of pending action) on the property. C.C.P. § 405.20 et seq. Plaintiffs should be aware, however, that they may be liable for attorneys’ fees and costs if any of these preliminary steps were improperly taken or not justified.
Second: Wrongful taking of an elder’s property or misuse of an elder’s Power of Attorney means the offender must restore twice the value of the property taken to the senior. Probate Code §§ 859 (taking an elder’s individual or trust property) and 4231.5(c)(wrongful use of a Power of Attorney to take an elder principal’s property).
Third:. If an abused elder shows financial abuse by a preponderance of the evidence, an award of attorneys’ fees and costs is mandatory. Cal. Welf. & Inst. Code § 15657.5. Any person who misuses a senior’s Power of Attorney is also liable for attorneys’ fees and costs. Probate Code § 4231.5(c).
If you suspect elder abuse of any kind, including financial elder abuse, call the elder abuse attorneys at Evans Law Firm at (415)441-8669. Our toll-free number is 1-888-80EVANS (888-503-8267).
Contact Us
Ingrid M. Evans represents seniors throughout California against any individuals or business who abuse them or financially exploit them. If you need help, call Ingrid and our other attorneys today at (415) 441-8669, or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Our toll-free number is 1-888-80EVANS (888-503-8267).
[1] The new law reads: “spoliation of evidence” means the intentional concealment or destruction of evidence that is done by a party, with the intent of preventing the evidence from being produced, and that has materially prejudiced the other party.” Cal. Welf. & Inst. Code § 15657.02(c).
