CAOC’s 2023 agenda

Preventing elder fraud and protecting civil justice

2023 March

This year we have introduced Senate Bill 278 (Dodd) to hold negligent banks accountable when they assist in financial fraud or scams that hurt elders. Financial scams against elders are on the rise in California, and too often banks are turning a blind eye while scammers rob older Californians of their life savings. Often called the “crime of the 21st century,” financial scams against elders are an epidemic, with estimates of annual economic losses of $3 billion dollars. This form of financial exploitation robs victims of their resources, dignity, and quality of life.

As mandated reporters, banks, credit unions, and other financial institutions are uniquely positioned to detect when a customer might be the victim of a scam or other financial abuse – and take action to protect elders from the devastating loss of their life savings. Unfortunately, the language of California’s current financial elder abuse statute (Welf. & Inst. Code, § 15610.30) is unclear. So, when an elder victim of a financial scam attempts to sue their bank for assisting their scammer, banks will claim that the institution must have “actual knowledge” of the purported fraud in order to be held liable for assisting in a scam. (Banks cite to Das v. Bank of America, N.A., 186 Cal.App.4th 727 to support this errant standard.) This impossible standard was never the intent of the law. SB 278 will clarify that the standard for proving “assisting” under the elder abuse act is whether the bank “knew or should have known.”

Delayed justice

Senator Scott Wiener introduced Senate Bill 365, co-sponsored by CAOC and the California Employment Lawyers Association, legislation aimed at protecting workers and consumers from the delay tactics corporations use when a court rules that an arbitration agreement is invalid, or that a signed agreement does not exist. Too often, corporations will file an appeal solely to delay a victim’s case – sometimes for years on end. SB 365 would allow the case to move forward when a company files such an appeal.

When the court finds that a worker or consumer never signed a forced arbitration agreement, or when that agreement is invalid, current law incentivizes bad actors to delay justice for workers and consumers by filing meritless appeals, which stay the case from moving forward, adding years to the process.

Real individuals are suffering real harm. The impact on consumers can be devastating. In one instance, a cryo-storage tank failure at a fertility center in San Francisco damaged or destroyed hundreds of frozen eggs and embryos. When the court ruled that the tank manufacturer could not force the victims into arbitration, the manufacturer filed an appeal that stopped the case in its tracks for more than two years.

We need your examples! Please share with our legislative team how meritless appeals of motions to compel arbitration have impacted your clients and delayed or denied justice.

Other important bills

Senator Tom Umberg introduced Senate Bill 21 to extend the sunset on remote access to the courts. CAOC was one of the leaders on creating statutory authorization during the pandemic to ensure the court doors could remain open virtually. Given the success of remote hearings in increasing access to justice, CAOC and a coalition of legal aid, housing rights, children advocates and others supported the continuation of this authorization. SB 21 will make sure the current law does not expire on July 1.

Senator Umberg has also introduced a bill, sponsored by CAOC, to ensure all expert witnesses testify to a reasonable degree of probability. One isolated court in Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123, 131-32, review denied (Aug. 31, 2022), upends current law by allowing only defense experts to testify to any “possible” cause of the injury rather than what “more likely than not” caused an injury. This errant court decision threatens to upend the credibility of expert witness testimony. This bill will codify the longstanding “reasonable degree of probability” standard to ensure juries can rely on all expert testimony equally.

In addition to working on our sponsored bills, your team at CAOC will review every bill to ensure the rights of consumers are protected.

Not all witnesses can offer opinions. Most witnesses can only testify on facts: the who, what, when, where, and how (Evid. Code, § 702). Experts, however, are the exception. They can offer opinions outside the areas of knowledge of the average juror to help them understand the issues and reach an informed decision. This includes opinions on the ultimate issue of fact in a case, such as what caused the plaintiff’s injury: Is the defendant responsible? Since expert testimony often carries greater weight than other witnesses, experts must be qualified, and there is an entire body of law governing qualifications of experts and their testimony. (Evid. Code, § 801.)

The one-sided lowering of the standard in Kline allows defense experts to offer any alternative cause whether they have data, science, or any rationale to support that cause. Anything may arguably be possible. As long as the action is a “possible” cause for the injury, and not purely speculative, Kline now permits this weaker, unreliable testimony to be provided to juries by an expert with credibility that is now illusory. This case has opened up the floodgates for junk science and simply absurd expert testimony. SB 652 will codify the longstanding “reasonable degree of probability” standard to ensure juries can rely on all expert testimony equally.

In addition to working on our sponsored bills, your team at CAOC will review every bill to ensure the rights of consumers are protected. Thank you for your support of CAOC’s legislative program.