BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 2619|
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                                    CONSENT


          Bill No:  AB 2619
          Author:   Block (D)
          Amended:  4/28/10 in Assembly
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  5-0, 6/15/10
          AYES:  Corbett, Harman, Hancock, Leno, Walters

           ASSEMBLY FLOOR  :  71-0, 5/10/10 - See last page for vote


           SUBJECT  :    Elder and dependent adult abuse:  restitution:   
          earnings 
                      withholding orders

           SOURCE  :     Author


           DIGEST :    This bill authorizes wage garnishments against  
          defendants convicted of elder or dependent adult financial  
          abuse.

           ANALYSIS  :    Existing law defines financial abuse of an  
          elder or dependent adult as the taking, secreting,  
          appropriating, obtaining, or retaining real or personal  
          property of an elder or dependent adult for a wrongful use  
          or with intent to defraud, or both.  (Welfare &  
          Institutions Code Section 15610.30.)

          Existing law provides for the issuance of a writ of  
          attachment in any action for damages stemming from the  
          financial abuse of an elder or dependent adult.  (Welfare &  
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          Institutions Code Section 15657.01.)

          Existing law authorizes courts to award attorney's fees and  
          costs, compensatory damages, and all other remedies  
          otherwise provided by law to victims of elder or dependent  
          adult abuse.  (Welfare & Institutions Code. Section  
          15657.5.)

          Existing law allows courts to issue withholding orders such  
          as to create a lien (wage garnishment) against employees  
          owing judgments.  (Code of Civil Procedure Section 706.010  
          et seq.)

          Existing law provides that a lien continues for a period of  
          one year from the date the earnings of the judgment debtor  
          become payable unless the amount required to be withheld  
          pursuant to the order is paid as required by law.  (Code of  
          Civil Procedure Section 706.029.)

          Existing law provides that child support withholding orders  
          are given priority over all other withholding orders.   
          (Code of Civil Procedure Section 706.031.)

          Existing law provides that tax withholding orders are given  
          priority after support withholding orders.  (Code of Civil  
          Procedure Section 706.077.)

          This bill authorizes a court to issue an earnings  
          withholding order against a person found guilty of elder or  
          dependent financial abuse.

          This bill requires the application for issuance of an  
          earnings withholding order to specify how much of the  
          judgment stems from a financial abuse claim.

          This bill, effective January 1, 2012, prioritizes elder or  
          dependent abuse withholding orders after child support and  
          tax withholding orders.

          This bill instructs employers not to withhold earnings  
          under an elder or dependent abuse order unless child  
          support, tax, and prior elder or dependent abuse orders  
          have expired.








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           Background
           
          In 1982, the Legislature recognized a need to protect elder  
          and dependent adults from abuse and exploitation, including  
          financial abuse.  The Elder Abuse and Dependent Adult Civil  
          Protection Act (EADACPA) was enacted to provide adult  
          protective services agencies, local long-term care  
          ombudsman programs, local law enforcement agencies, and  
          other interested parties the ability to use any means  
          necessary to protect elder and dependent adults from abuse.  
           (AB 1805 [Felando], Chapter 1184, Statutes 1982).
          In furtherance of the Legislature's intent to protect elder  
          and dependent adults, the Legislature enumerated several  
          crimes for injury to elder or dependent adults.  (SB 1681  
          [Mello], Chapter 594, Statutes 1984).  SB 1681 also created  
          a civil cause of action for financial abuse of elder and  
          dependent adults.

          This bill authorizes victims of elder and dependent adult  
          financial abuse to collect on judgments through wage  
          garnishment.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  6/16/10)

          Consumer Attorneys of California
          Insurance Brokers and Agents of the West
          National Association of Insurance and Financial Advisors of  
          California


           ARGUMENTS IN SUPPORT  :    The author's office writes, "This  
          [bill] allows victims of elder and dependent adult  
          financial abuse, who are victorious in court but unable to  
          collect from the defendant, a better opportunity to collect  
          restitution through wage garnishment. . . . The bill would  
          give priority to an "earnings withholding order for elder  
          or dependent adult financial abuse" over any other earnings  
          withholding order, and therefore moves victims of elder or  
          dependent adult financial abuse to the front of the line to  
          collect wages.  However, earnings withholding orders for  
          spousal and child support and for taxes will still have  







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          priority over all other withholding orders including elder  
          or dependent adult financial abuse.  AB 2916 also provides  
          that changes to the priority of these withholding orders  
          not be effective until January 1, 2012 so as to provide  
          ample time for all forms to be updated for employers."

          A supporter of the bill, Insurance Brokers and Agents of  
          the West, further describes the need for this bill as  
          follows, "Unfortunately, as with any business, there are  
          some bad actors in the insurance marketplace.  In a case  
          where a rogue agent may have committed actions considered  
          to be elder and financial abuse, he or she may be ordered  
          to pay restitution for several cases of fraud and the cost  
          of paying the fines and restitution renders them insolvent.  
          . . . We believe if a rogue insurance agent is convicted of  
          elder and dependent financial abuse, the victim should  
          absolutely be made whole again.  AB 2619 recognizes the  
          seriousness of these abuses and would make their  
          restitution a high priority when it comes to wage  
          garnishment."


           ASSEMBLY FLOOR  : 
          AYES:  Adams, Ammiano, Anderson, Arambula, Bass, Beall,  
            Bill Berryhill, Tom Berryhill, Blakeslee, Block,  
            Blumenfield, Bradford, Brownley, Buchanan, Caballero,  
            Charles Calderon, Carter, Chesbro, Conway, Cook, Coto,  
            Davis, De Leon, Emmerson, Eng, Evans, Feuer, Fletcher,  
            Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani,  
            Garrick, Gilmore, Hagman, Hall, Hayashi, Hernandez, Hill,  
            Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,  
            Bonnie Lowenthal, Ma, Miller, Monning, Nestande, Niello,  
            Nielsen, V. Manuel Perez, Portantino, Ruskin, Salas,  
            Silva, Skinner, Smyth, Audra Strickland, Swanson,  
            Torlakson, Torres, Torrico, Tran, Villines, Yamada, John  
            A. Perez
          NO VOTE RECORDED:  De La Torre, DeVore, Harkey, Mendoza,  
            Nava, Norby, Saldana, Solorio, Vacancy


          RJG:do  6/17/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE








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