BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 140
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          ASSEMBLY THIRD READING
          AB 140 (Dickinson)
          As Amended May 13, 2013
          Majority vote 

           JUDICIARY           7-2         AGING               4-0         
           
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          |Ayes:|Wieckowski, Alejo, Chau,  |Ayes:|Yamada, Brown, Gray,      |
          |     |Dickinson, Garcia,        |     |Levine                    |
          |     |Muratsuchi, Stone         |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Wagner, Maienschein       |     |                          |
          |     |                          |     |                          |
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           APPROPRIATIONS      12-0                                        
           
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          |Ayes:|Gatto, Bocanegra,         |     |                          |
          |     |Bradford,                 |     |                          |
          |     |Ian Calderon, Campos,     |     |                          |
          |     |Eggman, Gomez, Hall,      |     |                          |
          |     |Ammiano, Pan, Quirk,      |     |                          |
          |     |Weber                     |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           SUMMARY  :  Modifies the definition of undue influence.   
          Specifically,  this bill  : 

          1)For purposes of the Elder and Dependent Adult Civil Protection  
            Act (EDACPA) and the Probate Code, defines "undue influence"  
            as excessive persuasion that causes another person to act or  
            refrain from action and results in inequity.  In determining  
            whether a result was produced by undue influence, requires the  
            court to consider all of the following:  

             a)   The vulnerability of the victim;

             b)   The influencer's apparent authority, and whether the  
               influencer knew or should have known of the victim's  
               vulnerability;









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             c)   The actions or tactics used by the influencer;

             d)   The equity of the result.

          2)Provides that the above definition of undue influence is  
            intended to supplement common law, without superseding or  
            interfering with that law.

          3)Provides the provisions of this bill shall not be construed to  
            imply that an inequitable result, without more, constitutes  
            undue influence or excessive persuasion. 

           EXISTING LAW  :  

          1)Defines "undue influence" as:

             a)   Using a confidence or a real or apparent authority over  
               another person for the purpose of obtaining an unfair  
               advantage over that person;
             b)   Taking unfair advantage of another's weakness of mind;  
               or
             c)   Taking a grossly oppressive and unfair advantage of  
               another person's necessities or distress.  

          2)Establishes EDACPA to protect elderly and dependent adults  
            from abuse.  

          3)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.  

          4)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.  

          5)Provides that the execution or revocation of a will is  
            ineffective if it was procured by duress, menace, fraud or  
            undue influence.  

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee, to the extent the bill leads to additional civil  








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          actions claiming undue influence in elder financial abuse cases  
          there will be an impact on court costs and/or court case  
          backlogs.  Associated costs will likely be absorbable, as will  
          the costs for courts to consider the specified factors in  
          determining whether undue influence was present.

           COMMENTS  :  This bill seeks to modify the definition of undue  
          influence and apply that definition to actions brought under  
          EDACPA and the Probate Code.  By its own terms, the bill would  
          supplement, but not alter, the common law definition of undue  
          influence. While undue influence is defined under the Civil  
          Code, the author notes that this definition dates back to 1872  
          and has not been updated since then.  Moreover, there is no  
          definition of undue influence in the Probate Code, even though  
          the Probate Code provides that the execution or revocation of a  
          will is ineffective if it was procured by "undue influence." 

          Because of the general nature of the definition of "undue  
          influence" in Civil Code Section 1575, a body of California case  
          law has fleshed out the elements of "undue influence."  Although  
          it did not deal with an elderly victim, one of the seminal cases  
          on undue influence in California is Odorizzi v. Bloomfield  
          (1966) 246 Cal.App.2d 123.  The court, in upholding the  
          plaintiff's action, described undue influence as "a shorthand  
          legal phrase used to describe persuasion which tends to be  
          coercive in nature, persuasion which overcomes the will without  
          convincing the judgment.  The hallmark of such persuasion is  
          high pressure, a pressure which works on mental, moral, or  
          emotional weakness to such an extent that it approaches the  
          boundaries of coercion.  In this sense, undue influence has been  
          called overpersuasion."  (Id. at 130.)  The court found that the  
          characteristics of overpersuasion include:  "(1) discussion of  
          the transaction at an unusual or inappropriate time, (2)  
          consummation of the transaction in an unusual place, (3)  
          insistent demand that the business be finished at once, (4)  
          extreme emphasis on untoward consequences of delay, (5) the use  
          of multiple persuaders by the dominant side against a single  
          servient party, (6) absence of third-party advisers to the  
          servient party, (7) statements that there is no time to consult  
          financial advisers or attorneys."  (Id. at 133.) 

          As with elements set forth in Odorizzi, the factors set forth in  
          this bill focus on the nature and context of "persuasion."   
          However, where Odorizzi speaks in terms of "coercive" or "high  








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          pressure" persuasion, especially pressure that works on a  
          person's "mental, moral, or emotional weakness," this bill would  
          define undue influence as any "excessive persuasion" that causes  
          a person "to act or refrain from acting and results in  
          inequity."  In short, this bill appears not only to modify but  
          arguably expands the definition of "undue influence" by  
          incorporating considerations of the equity (or fairness) of the  
          result as opposed to only looking to the methods and context of  
          persuasion that overcome the will.  An unfair result would not  
          in itself be evidence of excessive persuasion, but it would be  
          something that a court would consider along with the methods and  
          context of persuasion.

          The bill lays out several factors that a court shall consider in  
          determining whether the persuasion was "excessive" and whether  
          it led to an "inequity."  These factors appear to be more or  
          less consistent with the language in Civil Code Section 1575 and  
          the factors set forth in Odorizzi.  That is, they look to the  
          vulnerability of the victim (which the 1872 statute more  
          prosaically defines as "weakness of mind") to the apparent  
          authority of influencer; to the influencer's tactics and the  
          settings in which the persuasion took place; and the equity of  
          the result in light of the victim's intent and the value of the  
          things exchanged.  

          The definition of "undue influence" and the factors set forth in  
          this bill are potentially more expansive than in existing  
          statute and case law.  The author contends, however, that this  
          new definition is needed in order to take account of our  
          contemporary knowledge about how elders are unduly influenced  
          and the nature and extent of financial elder abuse that occurs  
          today - not that which might have occurred in 1872.  Indeed, the  
          existing definition of "undue influence" appears in the Civil  
          Code provisions governing contracting generally; it was written  
          well before the Legislature determined that elder financial  
          abuse had become a significant problem and, accordingly, enacted  
          EDACPA.  The financial abuse provisions of EDACPA are premised,  
          at least in part, on the view that financial agreements entered  
          into by the elderly should not be subject only to the general  
          rules of contract, but should instead be subject to special  
          scrutiny.  Moreover, the author and sponsor contend that the  
          language of the existing definition does not adequately capture  
          the nuances of elder financial abuse.  For example, an elderly  
          person's cognitive vulnerability may not rise to the level of  








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          "weakness of mind;" persons who take advantage of the elderly  
          are not always persons with real or apparent authority; and an  
          elderly person may have considerable assets and thus not suffer  
          from "necessities or distress" as usually understood.  

           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334 


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