Bill Text: CA AB2619 | 2009-2010 | Regular Session | Chaptered
Bill Title: Elder and dependent adult abuse: restitution: earnings
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Passed) 2010-07-09 - Chaptered by Secretary of State - Chapter 64, Statutes of 2010. [AB2619 Detail]
Download: California-2009-AB2619-Chaptered.html
BILL NUMBER: AB 2619 CHAPTERED
BILL TEXT
CHAPTER 64
FILED WITH SECRETARY OF STATE JULY 9, 2010
APPROVED BY GOVERNOR JULY 9, 2010
PASSED THE SENATE JUNE 24, 2010
PASSED THE ASSEMBLY MAY 10, 2010
AMENDED IN ASSEMBLY APRIL 28, 2010
AMENDED IN ASSEMBLY APRIL 6, 2010
INTRODUCED BY Assembly Member Block
(Coauthors: Assembly Members Blumenfield, Hill, Jones, and
Torrico)
FEBRUARY 19, 2010
An act to amend Sections 706.011, 706.023, 706.121, and 706.125 of
the Code of Civil Procedure, and to amend Section 15657.5 of the
Welfare and Institutions Code, relating to elder and dependent adult
abuse.
LEGISLATIVE COUNSEL'S DIGEST
AB 2619, Block. Elder and dependent adult abuse: restitution:
earnings withholding orders.
Existing law provides for the award of attorney's fees and costs,
and damages to a plaintiff when it is proven by a preponderance of
the evidence that the defendant is liable for financial abuse of an
elder or dependent adult. Existing law authorizes the remedy of
attachment against a defendant's property to secure the amount of the
claimed indebtedness to the plaintiff in connection with cases
involving financial abuse of an elder or dependent adult.
This bill would require the court to issue an earnings withholding
order for elder or dependent adult financial abuse, as defined, for
a defendant who has been found liable for financial abuse of an elder
or dependent adult, as specified.
Existing law provides that, except for earnings assignment orders
for support, the provisions governing earnings withholding orders
provide the exclusive procedure by which a judgment creditor can
execute against the wages of a judgment debtor. Existing law provides
that if an employer is served with 2 or more earnings withholding
orders, the employer is required to comply with the order issued
pursuant to the judgment first entered.
This bill would require that earnings withholding orders for elder
or dependent adult financial abuse be given priority over any other
earnings withholding orders, as provided. The bill would also
require, however, that earnings withholding orders for support or for
taxes be given priority over earnings withholding orders for elder
or dependent adult financial abuse. The bill would require that the
application for issuance of an earnings withholding order and the
earnings withholding order include how much of the judgment arises
from that claim.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 706.011 of the Code of Civil Procedure is
amended to read:
706.011. As used in this chapter:
(a) "Earnings" means compensation payable by an employer to an
employee for personal services performed by such employee, whether
denominated as wages, salary, commission, bonus, or otherwise.
(b) "Earnings withholding order for elder or dependent adult
financial abuse" means an earnings withholding order, made pursuant
to Article 5 (commencing with Section 706.100) and based on a money
judgment in an action for elder or adult dependent financial abuse
under Section 15657.5 of the Welfare and Institutions Code.
(c) "Earnings assignment order for support" means an order, made
pursuant to Chapter 8 (commencing with Section 5200) of Part 5 of
Division 9 of the Family Code or Section 3088 of the Probate Code,
which requires an employer to withhold earnings for support.
(d) "Employee" means a public officer and any individual who
performs services subject to the right of the employer to control
both what shall be done and how it shall be done.
(e) "Employer" means a person for whom an individual performs
services as an employee.
(f) "Judgment creditor," as applied to the state, means the
specific state agency seeking to collect a judgment or tax liability.
(g) "Judgment debtor" includes a person from whom the state is
seeking to collect a tax liability under Article 4 (commencing with
Section 706.070), whether or not a judgment has been obtained on such
tax liability.
(h) "Person" includes an individual, a corporation, a partnership
or other unincorporated association, a limited liability company, and
a public entity.
SEC. 2. Section 706.023 of the Code of Civil Procedure is amended
to read:
706.023. Except as otherwise provided in this chapter:
(a) An employer shall comply with the first earnings withholding
order served upon the employer.
(b) If the employer is served with two or more earnings
withholding orders on the same day, the employer shall comply with
the order issued pursuant to the judgment first entered. If two or
more orders served on the same day are based on judgments entered
upon the same day, the employer shall comply with whichever one of
the orders the employer selects.
(c) If an earnings withholding order is served while an employer
is required to comply with another earnings withholding order with
respect to the earnings of the same employee, the subsequent order is
ineffective and the employer shall not withhold earnings pursuant to
the subsequent order, except as provided in subdivision (d).
(d) Notwithstanding any other provisions of this section, a
withholding order for elder or dependent adult financial abuse has
priority over any other earning withholding order except for a
withholding order for support under Section 706.030 and a withholding
order for taxes under Section 706.072.
(1) An employer upon whom a withholding order for elder or
dependent adult financial abuse is served shall withhold and pay over
earnings of the employee pursuant to that order notwithstanding the
requirements of another earnings withholding order except as provided
in paragraph (2).
(2) An employer shall not withhold earnings of an employee
pursuant to an earnings withholding order for elder or dependent
adult financial abuse if a withholding order for support or for taxes
is in effect or if a prior withholding order for elder or dependent
adult financial abuse is in effect. In that case, the subsequent
withholding order for elder or dependent financial abuse is
ineffective.
(3) When an employer is required to cease withholding earnings
pursuant to a prior earnings withholding order, the employer shall
notify the levying officer who served the prior earnings withholding
order that a supervening earnings withholding order for elder or
dependent financial abuse is in effect.
SEC. 3. Section 706.121 of the Code of Civil Procedure is amended
to read:
706.121. The "application for issuance of earnings withholding
order" shall be executed under oath and shall include all of the
following:
(a) The name, the last known address, and, if known, the social
security number of the judgment debtor.
(b) The name and address of the judgment creditor.
(c) The court where the judgment was entered and the date the
judgment was entered.
(d) Whether the judgment is based in whole or in part on a claim
for elder or dependent adult financial abuse and, if in part, how
much of the judgment arises from that claim.
(e) The date of issuance of a writ of execution to the county
where the earnings withholding order is sought.
(f) The total amount required to satisfy the order on the date of
issuance (which may not exceed the amount required to satisfy the
writ of execution on the date of issuance of the order plus the
levying officer's statutory fee for service of the order).
(g) The name and address of the employer to whom the order will be
directed.
(h) The name and address of the person to whom the withheld money
is to be paid by the levying officer.
SEC. 4. Section 706.125 of the Code of Civil Procedure is amended
to read:
706.125. The "earnings withholding order" shall include all of
the following:
(a) The name, address, and, if known, the social security number
of the judgment debtor.
(b) The name and address of the employer to whom the order is
directed.
(c) The court where the judgment was entered, the date the
judgment was entered, and the name of the judgment creditor.
(d) Whether the judgment is based in whole or in part on a claim
for elder or dependent adult financial abuse and, if in part, how
much of the judgment arises from the claim.
(e) The date of issuance of the writ of execution to the county
where the earnings withholding order is sought.
(f) The total amount required to satisfy the order on the date of
issuance (which may not exceed the amount required to satisfy the
writ of execution on the date of issuance of the order plus the
levying officer's statutory fee for service of the order).
(g) A description of the withholding period and an order to the
employer to withhold from the earnings of the judgment debtor for
each pay period the amount required to be withheld under Section
706.050 or the amount specified in the order subject to Section
706.024, as the case may be, for the pay periods ending during the
withholding period.
(h) An order to the employer to pay over to the levying officer at
a specified address the amount required to be withheld and paid over
pursuant to the order in the manner and within the times provided by
law.
(i) An order that the employer fill out the "employer's return"
and return it by first-class mail, postage prepaid, to the levying
officer at a specified address within 15 days after service of the
earnings withholding order.
(j) An order that the employer deliver to the judgment debtor a
copy of the earnings withholding order and the "notice to employee of
earnings withholding order" within 10 days after service of the
earnings withholding order; but, if the judgment debtor is no longer
employed by the employer and the employer does not owe the employee
any earnings, the employer is not required to make the delivery.
(k) The name and address of the levying officer.
SEC. 5. Section 15657.5 of the Welfare and Institutions Code is
amended to read:
15657.5. (a) Where it is proven by a preponderance of the
evidence that a defendant is liable for financial abuse, as defined
in Section 15610.30, in addition to compensatory damages and all
other remedies otherwise provided by law, the court shall award to
the plaintiff reasonable attorney's fees and costs. The term "costs"
includes, but is not limited to, reasonable fees for the services of
a conservator, if any, devoted to the litigation of a claim brought
under this article.
(b) Where it is proven by a preponderance of the evidence that a
defendant is liable for financial abuse, as defined in Section
15610.30, and where it is proven by clear and convincing evidence
that the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse, in addition to
reasonable attorney's fees and costs set forth in subdivision (a),
compensatory damages, and all other remedies otherwise provided by
law, the limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any punitive damages may be imposed against an employer found liable
for financial abuse as defined in Section 15610.30. This subdivision
shall not apply to the recovery of compensatory damages or attorney'
s fees and costs.
(d) Nothing in this section affects the award of punitive damages
under Section 3294 of the Civil Code.
(e) Any money judgment in an action under this section shall
include a statement that the damages are awarded based on a claim for
financial abuse of an elder or dependent adult, as defined in
Section 15610.30. If only part of the judgment is based on that a
claim, the judgment shall specify what amount was awarded on that
basis.
SEC. 6. This act shall become operative on January 1, 2012.
