Committee approves lower evidentiary standard in elder abuse cases when facilities destroy records

A California Senate Judiciary Committee moved AB 251 forward after supporters said the bill will help families pursue civil claims when long-term care facilities intentionally destroy records. The measure allows a judge, after finding spoliation (intentional destruction) of evidence, to apply the lower preponderance-of-the-evidence standard rather than clear-and-convincing evidence in elder-abuse cases.

The bill, presented by an author’s representative as a targeted response to record destruction in facilities, was described as “narrow but important” and as restoring access to justice for victims who are often ill, incapacitated or deceased. Supporters said courts already have sanctions for spoliation, but those remedies do not address the practical problem of proving facts when documents and records are missing.

Tony Chikatell, staff attorney with California Advocates for Nursing Home Reform, told the committee the existing clear-and-convincing standard is “a really tough burden to prove” in elder-abuse suits and that medical records are often critical when witnesses are unavailable. Jackie Serna, deputy legislative director with Consumer Attorneys of California, said AB 251 “allows the courts to lower the burden of proof if a nursing home is found to have intentionally destroyed legal evidence.” Both organizations asked for a yes vote.

Opponents, including Chris McCallie of the Civil Justice Association of California and Danielle Parsons of the California Assisted Living Association, argued judges already have tools—monetary sanctions, preclusion and terminating sanctions—under the Code of Civil Procedure to address spoliation. They said the bill could increase litigation costs and invite accusations of spoliation against facilities.

Committee members questioned how a judge would determine that spoliation occurred and whether proving intentional destruction risks proving a negative. The author’s representative responded that the judge would make a factual finding of spoliation before any change in the burden of proof would apply.

After public testimony on both sides and committee discussion, the committee passed AB 251. The motion to pass was made by Dr. Weber Pearson; roll-call voting recorded unanimous support in the final vote tabulation reported during the hearing.

The measure was described by its proponents as amended to address concerns raised by the governor’s veto of a prior version and to preserve judicial discretion about whether to apply the lower evidentiary standard.

Implementation details, including how frequently judges will exercise the discretion and any later appellate review, were not resolved in the hearing notes. Supporters said they are working with the Department of Social Services and stakeholder groups to align record-retention policies and legal protections across facility types.

AB 251 will move to the next committee for further consideration.