BILL ANALYSIS Ó
AB 140
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CONCURRENCE IN SENATE AMENDMENTS
AB 140 (Dickinson)
As Amended July 2, 2013
Majority vote
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|ASSEMBLY: |57-10|(May 16, 2013) |SENATE: |34-0 |(September 11, |
| | | | | |2013) |
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Original Committee Reference: JUD.
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 by overcoming that person's free will and
that 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;
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)Specifies that an inequitable result, without more, is not
sufficient to prove undue influence.
The Senate amendments modify the definition of "undue influence"
to clarify that excessive persuasion must include "overcoming
that person's free will" and to remove a knowledge requirement
relating to the vulnerability of the victim.
EXISTING LAW :
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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)Requires, when it is proven by a preponderance of the evidence
that the defendant is liable for financial abuse of an elder
or dependent adult, 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 Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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
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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
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 by overcoming that
person's free will" and that 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; the apparent authority of the
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influencer; 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
"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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