Special Fee Shifting Statutes: Financial Elder Abuse Fee Shifting Provision Precludes An Award Of Attorney’s Fees To A Prevailing Defendant Under A Financial Elder Abuse Claim

Only A Prevailing Plaintiff Is Entitled To Fee Recovery Under Welfare & Institutions Code § 15657.5(a).

            In Sall v. Agam, Case No. B317976 (2d Dist., Div. 4 Apr. 21, 2023) (unpublished), the appellate court considered whether a prevailing defendant could obtain attorney’s fees under Welfare & Institutions Code section 15657.5(a), which expressly only allows fee recovery to a prevailing plaintiff on a cause of action for financial elder abuse under the Elder Abuse Act.  After considering both the legislative policy behind the statutory provision and case law in the area, the appellate court affirmed the trial court’s conclusion that a prevailing defendant cannot obtain fee recovery, where the only cause of action was a financial elder abuse claim and notwithstanding the existence of a contract which authorized fee shifting.