BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2619 (Block)
As Amended April 28, 2010
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
TW:jd
SUBJECT
Elder and Dependent Adult Abuse: Restitution: Earnings
Withholding Orders
DESCRIPTION
This bill would authorize wage garnishments against defendants
convicted of elder or dependent adult financial abuse.
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, Ch. 1184,
Stats. 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, Ch. 594,
Stats. 1984).) SB 1681 also created a civil cause of action for
financial abuse of elder and dependent adults.
This bill would authorize victims of elder and dependent adult
financial abuse to collect on judgments through wage
garnishment.
CHANGES TO EXISTING LAW
(more)
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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.
(Welf. & Inst. Code Sec. 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. (Welf. & Inst. Code Sec.
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.
(Welf. & Inst. Code. Sec. 15657.5.)
Existing law allows courts to issue withholding orders such as
to create a lien (wage garnishment) against employees owing
judgments. (Code Civ. Proc. Sec. 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 Civ. Proc. Sec.
706.029.)
Existing law provides that child support withholding orders are
given priority over all other withholding orders. (Code Civ.
Proc. Sec. 706.031.)
Existing law provides that tax withholding orders are given
priority after support withholding orders. (Code Civ. Proc.
Sec. 706.077.)
This bill would authorize a court to issue an earnings
withholding order against a person found guilty of elder or
dependent financial abuse.
This bill would require 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, would prioritize elder or
dependent abuse withholding orders after child support and tax
withholding orders.
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This bill would instruct 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.
COMMENT
1. Stated need for the bill
The author 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
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.
2. Due process for the defendant
AB 707 (McAlister, Chapter 1364, Statutes of 1982) overhauled
money judgment enforcements under the Code of Civil Procedure.
One of the goals in revising the law was to balance the
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interests and rights of debtors, creditors, and third parties.
AB 707 authorized courts to issue withholding orders whereby
employers would subtract specified amounts from the defendant's
paycheck in order to provide plaintiffs with judgment recovery.
AB 707 set up various procedures necessary to collect a
judgment through wage garnishment so that the defendant's rights
were adequately protected and the plaintiff would receive
restitution. AB 707 also established wage garnishment priority
for child support orders.
This bill would provide a method for victims of elder or
dependent adult financial abuse to collect their awarded
judgments through wage garnishments against defendants. This
method effectively provides these plaintiffs with an appropriate
mechanism with which to collect on their judgment while
protecting rights of defendants. Included in the plaintiff's
judgment may be reasonable attorney's fees and costs incurred by
the victim. To receive attorney's fees and costs, the victim
would have to prove by a preponderance of the evidence that the
defendant was liable for financial abuse. (Welf. & Inst. Code
Sec. 15657.5(a).) The victim may also be awarded compensatory
damages. To receive compensatory damages, the victim would have
to prove by clear and convincing evidence that the defendant was
guilty of recklessness, oppression, fraud, or malice in the
commission of financial abuse. (Welf. & Inst. Code Sec.
15657.5(b).) The defendant is given an opportunity in court to
present evidence to dispute the victim's claims, and the victim
must present a minimum level of evidence in order to win
attorney's fees and costs and a higher level of evidence to win
compensatory damages. Further, Code of Civil Procedure Section
706.010 et seq. provides exemptions and limitations on wage
garnishments which protect the defendant in certain
circumstances.
Under this bill, when a defendant has failed to pay the
plaintiff's judgment or the defendant has become insolvent, the
plaintiff would be able to collect the judgment through a wage
withholdings order which would garnish a portion of the
defendant's wages. Given that defendants have the ability to
defend themselves in court and Code of Civil Procedure wage
garnishment protections, the mechanism provided by this bill for
plaintiff's to collect on their judgment is fair to both the
plaintiff and the defendant.
3. Legislature's intent to protect victims of elder and
dependent adult abuse
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In accordance with the Legislature's explicit intent under the
EADACPA to protect victims of elder and dependent adult abuse,
this bill would allow these victims the ability to recover money
awarded to the victims by the court. In many instances,
victims of elder and dependent financial abuse have difficulty
collecting on the awarded judgments because the defendant fails
to pay or becomes insolvent at the hands of other creditors. In
these instances, the defendants not only receive the financial
gain stolen from the victims but also fail to pay the court's
judgment.
Victims of elder and dependent adult financial abuse are
particularly vulnerable because they have a decreased ability to
protect themselves from scam artists. In the event the elder or
dependent adult relies on a caretaker for their medical needs,
the elder or dependent adult who is a victim of financial abuse
may then become a financial burden on their caretakers. By
allowing these vulnerable victims to recover through wage
garnishment the monies lost to unscrupulous defendants, this
bill would provide a necessary avenue for the victims to
recover.
Support : Consumer Attorneys of California; Insurance Brokers
and Agents of the West; National Association of Insurance and
Financial Advisors of California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : See Background and Comment 2.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
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