BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2619
                                                                  Page  1

          Date of Hearing:  May 4, 2010

                          ASSEMBLY COMMITTEE ON JUDICIARY
                                 Mike Feuer, Chair
                    AB 2619 (Block) - As Amended:  April 28, 2010

                                  PROPOSED CONSENT
           
           SUBJECT:  Elder OR dependent adult FINANCIAL abuse: EARNINGS  
          WITHHOLDING ORDERS

           KEY ISSUE :  IN ORDER TO PROTECT SENIORS AND DISABLED ADULTS  
          FROM FINANCIAL ABUSE, SHOULD PRIORITY BE GIVEN TO COLLECTING A  
          MONEY JUDGMENT FOR ELDER OR DEPENDENT ADULT FINANCIAL ABUSE IN  
          THE withholding OF the defendant's wages?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.  
           
                                      SYNOPSIS

          The Elder Abuse and Dependent Adult Civil Protection Act  
          (EADACPA) was enacted to protect elder and dependent adults  
          from abuse and exploitation, including financial abuse.  This  
          bill allows victims of elder and dependant adult financial  
          abuse, who are victorious in court but unable to collect the  
          judgment directly from the defendant, a better opportunity to  
          collect through wage withholding.  This bill provides victims  
          of elder and dependant adult financial abuse priority over  
          other earnings withholding orders, except orders for spousal  
          and child support and back taxes.  According to the author,  
          victims of elder and dependant adult financial abuse awarded a  
          money judgment in court have trouble collecting their damages  
          if the defendant has already spent the money they defrauded  
          from the elder or dependant adult and cannot otherwise pay the  
          judgment.  If the defendant is employed, however, the victim  
          can secure a garnishment of the defendant's wages.  This bill  
          will assist victims of elder and dependant adult financial  
          abuse to collect, in a timely manner, the restitution needed to  
          make them whole again.  The bill is supported by the National  
          Association of Insurance and Financial Advisors of California  
          and there is no known opposition.

           SUMMARY  :  Provides, effective January 1, 2012, earnings  
          withholding orders for victims of elder and dependant adult  








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          financial abuse have priority over other withholding orders,  
          except as specified.  Specifically,  this bill  :   

          1)Provides, effective January 1, 2012, that a withholding order  
            for a money judgment for elder or dependent adult financial  
            abuse has priority over any other earnings withholding order,  
            except a withholding order for support and a withholding  
            order for back taxes.  Requires an employer to withhold and  
            pay over the earnings of an employee pursuant to the  
            withholding order, unless there is in effect a withholding  
            order for support or taxes or a previous withholding order  
            for elder or dependent adult financial abuse.  Requires the  
            employer to cease withholding and notify the levying officer  
            if a subsequent withholding holding order with a higher  
            priority is served.

          2)Requires, effective January 1, 2012, that a money judgment  
            for financial abuse of an elder or dependent adult include  
            such a statement and, if only part of the judgment is based  
            on that financial abuse, requires the judgment to specify  
            what amount of the judgment was awarded on that basis.

           EXISTING LAW  :  

          1)Establishes EADACPA to protect elderly and dependent adults  
            from abuse.  (Welfare & Institutions Code Section 15600 et  
            seq.  Unless stated otherwise, all further statutory  
            references are to that code.)

          2)Provides that "financial abuse" occurs when a person takes,  
            secretes, appropriates, obtains, or retains real or personal  
            property of an elder or dependent adult for a wrongful use,  
            or with intent to defraud, or by undue influence, or when a  
            person assists another in that conduct.  (Sections  
            15610.30(a).)

          3)When it is proven by a preponderance of the evidence that the  
            defendant is liable for financial abuse of an elder or  
            dependent adult, requires the court to award compensatory  
            damages and attorney's fees and costs.  (Section 15657.5)

          4)Authorizes the remedy of attachment against a defendant  
            liable for financial abuse of an elder or dependent adult.   
            (Section 15657.01.)









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          5)Provides that a withholding order for support has priority  
            over any other earnings withholding orders, including prior  
            withholding orders.  (Code of Civil Procedure Section  
            706.030.)

          6)Provides that a withholding order for taxes has priority over  
            any other earnings withholding orders, except for a  
            withholding order for support, including prior withholding  
            orders.  (Code of Civil Procedure Section 706.077.)

          7)Provides that if an employer is served with two or more  
            earnings withholding orders, the employer is required to  
            comply with the first order served on the employer.  (Code of  
            Civil Procedure Section 706.023.)

           COMMENTS  :  EADACPA was enacted to protect elder and dependent  
          adults from abuse and exploitation.  EADACPA recognizes that  
          elders and dependent adults may have disabilities and cognitive  
          impairments, such as Alzheimer's disease and other dementia  
          disorders, which often leaves them incapable of seeking help  
          and protection from others; and that elders and dependent  
          adults suffer physical impairments and poor health, conditions  
          that place them in a dependent and vulnerable position.   
          Further, legislative findings codified in EADACPA state that  
          cases of elder and dependent adult abuse are seldom prosecuted  
          as criminal matters, and few civil cases are brought in  
          connection with this abuse due to problems of proof, court  
          delays, and the lack of incentives to prosecute these suits.

          Under EADACPA, an elder or dependent adult whose property is  
          wrongfully taken by another may bring a civil action for  
          financial abuse to recover the loss of the property and the  
          expense of hiring an attorney to bring the action.  

          This bill allows victims of elder or dependant adult financial  
          abuse, who are victorious in court but unable to collect the  
          judgment directly from the defendant, a better opportunity to  
          collect through wage withholding, by providing the victim with  
          priority over other earnings withholding orders, except orders  
          for spousal and child support and back taxes.  

          The author writes that this bill seeks to strengthen EADACPA  
          and better protect elder and dependent adults by improving  
          collection methods:









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               Victims of elder and dependant adult financial abuse  
               who are awarded a money judgment in court have trouble  
               collecting their damages if the defendant has already  
               spent the money they defrauded from the elder or  
               dependant adult and cannot otherwise pay the judgment.  
               But if the defendant is employed, the victim can  
               secure a garnishment on the defendant's wages. 

               Under existing law, when an employer is served with  
               more than one earnings withholding order, the employer  
               must comply with the order entered first.  If another  
               creditor files their earnings withholding order before  
               the victim of elder or dependant adult financial  
               abuse, the victim will be unable to collect their  
               judgment until the other creditor has collected all of  
               their money-a process that could take a very long time  
               depending on the size of the debt and the defendant's  
               paycheck.  Meanwhile, the victims of elder and  
               dependant adult financial abuse must wait, often years  
               to collect the damages, attorney's fees, and costs  
               owed to them. . . . .

               The bill would give priority to an "earnings  
               assignment order for elder or dependant adult  
               financial abuse" over any earnings withholding order,  
               and therefore moves victims of elder or dependant  
               adult financial abuse to the front of the line to  
               collect wages, similar to the way that spousal and  
               child support orders have priority over all other  
               earnings withholding orders. . . . This bill will  
               assist victims of elder and dependant adult financial  
               abuse to collect, in a timely manner, the restitution  
               needed to make them whole again.

          The impetus for this bill are two of the author's constituents  
          who recently won a financial elder abuse lawsuit but  
          unfortunately were unable to collect on the judgment because  
          the defense counsel had first filed a withholdings order on the  
          defendant's wages to collect attorney's fees owed by the  
          defendant.  According to the author, the victims were beaten  
          out by the abuser's attorney.

           This Bill Gives Priority to Withholding Orders to Collect in  
          Elder or Dependant Financial Abuse Awards  :  The bill gives  
          priority to an elder or dependant adult financial abuse  








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          judgment that has been reduced to an earnings withholding order  
          over any earnings withholding order, and therefore moves  
          victims of elder or dependant adult financial abuse to the  
          front of the line to collect wages.  However, recognizing the  
          importance of collecting child and spousal support, as well  
          collecting delinquent taxes, this bill rightly maintains the  
          existing priority scheme, which provides the top priority to  
          support withholding orders and the second priority to  
          delinquent taxes.  Thus, this bill gives the third priority to  
          withholding orders for elder or dependant adult financial  
          abuse.  

          In order to ensure that forms for employers can be properly  
          updated, this bill rightly provides that the changes to the  
          priority for these withholding orders will be effective on  
          January 1, 2012.  

           ARGUMENTS IN SUPPORT  :  In support of the bill, the National  
          Association of Insurance and Financial Advisors of California  
          writes that the group is "well aware of the unfortunate reality  
          that elder and dependent adult financial abuse occurs and that  
          sometimes victims have difficulties collecting money that is  
          awarded to them by the court for restitution.  . . . AB 2619  
          would assist victims, in these unfortunate situations," by  
          giving them priority in collecting their financial abuse  
          judgments.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Consumer Attorneys of California
          National Association of Insurance and Financial Advisors of  
          California

           Opposition 
           
          None on file

           Analysis Prepared by  :  Leora Gershenzon and Cheryl Lema/ JUD. /  
          (916) 319-2334 












                                                                  AB 2619
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