BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 2553|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 2553
Author: Solorio (D), et al
Amended: 4/29/08 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 6/10/08
AYES: Corbett, Kuehl, Steinberg
NOES: Harman, Ackerman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 74-0, 5/1/08 - See last page for vote
SUBJECT : Domestic violence: ex parte orders
SOURCE : Author
DIGEST : This bill (1) requires the court to provide its
reason for denying a petition for an ex parte order
enjoining harassment, threats, and violence, (2) requires
any order denying a jurisdictionally adequate petition for
an ex parte order to provide the petitioner the right to a
noticed hearing on the earliest date that the business of
the court will permit, (3) provides that nothing in these
provisions shall preclude a petitioner who waives his or
her right to a noticed hearing from refilling a new
petition, without prejudice, at a later time, and (4)
requires the Judicial Council to develop a form to
implement these provisions on or before January 1, 2010.
CONTINUED
AB 2553
Page
2
ANALYSIS : Existing law permits a court to issue a
domestic violence protective order enjoining a party from
molesting, attacking, striking, stalking, threatening,
sexually assaulting, battering, harassing, destroying
personal property, and other specified behaviors.
Existing law permits protective orders to be issued ex
parte, or after notice and a hearing, or by a judicial
officer after assertions by a law enforcement officer that
the person is in immediate and present danger of domestic
violence.
Existing law permits a court to extend a protective order,
upon a showing of good cause, to other named family or
household members.
Existing law permits a court to issue an ex parte order
enjoining a party from specified behaviors, excluding them
from the family dwelling, determining temporary custody of,
and visitation with, a minor child, and temporarily
determining use, possession, or control of real or personal
property, provided certain requirements are met.
This bill provides that an order denying a petition for an
ex parte temporary restraining order shall include the
reasons for denial of the petition.
This bill provides that an order denying a jurisdictionally
adequate petition for an ex parte order shall provide the
petitioner the right to a noticed hearing within 20 days
or, if good cause appears to the court, 25 days from the
date of the order.
This bill provides that the petitioner must have served on
the respondent, at least five days before the hearing, a
copy of the application and affidavits, and any other
supporting papers filed with the court.
This bill provides that upon the denial of the ex parte
order, the
petitioner shall have the option to waive his or her right
to a noticed hearing.
This bill provides that nothing in its provisions shall
AB 2553
Page
3
preclude a petitioner who waives his or her right to a
noticed hearing from re-filing a new petition for a
temporary restraining order, without prejudice, at a later
time.
This bill provides that the Judicial Council shall develop
a form to implement these provisions by January 1, 2010.
This bill addresses concerns raised in a recent appellate
court decision. In Nakamura v. Parker , (2007) 156
Cal.App.4th 327, the California Court of Appeals, First
Appellate District, stated that a "rubber stamp" denial of
a temporary restraining order filed pursuant to the
Domestic Violence Protection Act (DVPA) was "highly
imprudent." The court acknowledged that a trial court is
not explicitly required by law to state reasons for the
decision rendered, but emphasized that the "fairness and
effectiveness of adjudication are promoted by reasoned
opinions." (Id. at 335-336) The court stated that failure
to articulate reasons for the denial of a temporary
restraining order will inevitably lead parties to guess at
reasons and act accordingly. In particular, the court
noted the danger that the "rubber stamp" denial encourages
the batterer to continue harassing or abusing the victim,
which is entirely contrary to the purpose of the DVPA.
(Id.)
This bill addresses the concerns highlighted by the
appellate court and prohibits trial courts from issuing
"rubber stamp" denials of petitions for temporary
restraining orders filed by victims of domestic violence.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 6/30/08)
California Partnership to End Domestic Violence
California Peace Officers' Association
California Police Chiefs Association
ARGUMENTS IN SUPPORT : According to the author's office,
while greater awareness of the severity and prevalence of
AB 2553
Page
4
domestic violence have resulted in greater protection for
victims in recent years, there are still countless barriers
to safety for victims of domestic violence. Specifically,
the author's office points to instances where victims
seeking temporary restraining orders are denied immediate
protection without understanding reasons for the denial and
without any recourse to protect themselves from their
batterer as they wait for a noticed hearing.
ASSEMBLY FLOOR :
AYES: Adams, Aghazarian, Anderson, Arambula, Bass, Beall,
Berg, Berryhill, Blakeslee, Brownley, Caballero, Carter,
Cook, Coto, Davis, De La Torre, De Leon, DeSaulnier,
DeVore, Duvall, Dymally, Emmerson, Eng, Evans, Feuer,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garcia,
Garrick, Hancock, Hayashi, Hernandez, Horton, Houston,
Huff, Huffman, Jeffries, Jones, Karnette, Keene, La
Malfa, Laird, Leno, Lieber, Lieu, Ma, Maze, Mendoza,
Mullin, Nakanishi, Nava, Niello, Parra, Plescia,
Portantino, Price, Ruskin, Salas, Saldana, Silva, Smyth,
Solorio, Spitzer, Strickland, Swanson, Torrico, Tran,
Villines, Walters, Wolk, Nunez
NO VOTE RECORDED: Benoit, Charles Calderon, Krekorian,
Levine, Sharon Runner, Soto
RJG:mw 7/1/08 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****