Panel advances bill letting judges lower proof standard when nursing homes destroy records

At a Senate Judiciary Committee hearing, members advanced Assembly Bill 251, which would let a judge apply the lower preponderance-of-the-evidence standard in certain elder-abuse and dependent-adult civil cases when the court finds intentional destruction of evidence by a skilled nursing facility or residential care facility for the elderly (RCFE).

Assemblymember (presenting) said the bill narrows relief to cases where a court first finds spoliation and preserves judicial discretion, saying it addresses a governor's prior veto by allowing judges to decide whether to apply the lower threshold. Supporters told the committee that the existing clear-and-convincing standard makes it difficult to hold facilities accountable when victims cannot testify because of illness or death.

Tony Chikatell, staff attorney with California Advocates for Nursing Home Reform, said, “A victim has to prove the facility is liable by clear and convincing evidence ... This is a really tough burden to prove, really tough to get justice.” Jackie Serna, deputy legislative director with Consumer Attorneys of California, added, “AB 251 provides a simple but important fix. It allows the courts to lower the burden of proof if a nursing home is found to have intentionally destroyed legal evidence.”

Opponents warned the change is unnecessary because courts already have sanctions for spoliation. Chris McCallie of the Civil Justice Association of California said judges can use existing remedies such as monetary sanctions, preclusion or terminating sanctions, and juries can weigh misconduct. Danielle Parsons of the California Assisted Living Association said the bill would increase litigation costs and could lead to “seemingly automatic accusations of spoliation.”

Committee discussion focused on safeguards and proof: supporters reiterated that a judge must first find intentional destruction before the evidentiary standard may be lowered, while opponents said proving intentional destruction is legally problematic and that existing sanctions suffice. The committee voted to move AB 251 forward.

Votes at a glance: the committee recorded the motion to pass AB 251 to the Senate Appropriations Committee, with a final roll-call recorded in the hearing as 10 yes, 0 no. The motion was recorded in the transcript as a pass to appropriations.