BILL NUMBER: AB 454 ENROLLED
BILL TEXT
PASSED THE SENATE JUNE 27, 2011
PASSED THE ASSEMBLY JULY 1, 2011
AMENDED IN SENATE MAY 27, 2011
AMENDED IN SENATE MAY 10, 2011
AMENDED IN ASSEMBLY MARCH 16, 2011
INTRODUCED BY Assembly Member Silva
FEBRUARY 15, 2011
An act to amend Sections 527.6, 527.8, and 527.85 of the Code of
Civil Procedure, to amend Section 6345 of the Family Code, and to
amend Sections 213.5 and 15657.03 of the Welfare and Institutions
Code, relating to protective orders.
LEGISLATIVE COUNSEL'S DIGEST
AB 454, Silva. Protective orders: early termination.
Existing law authorizes a court to issue an injunction enjoining a
party from certain acts and behaviors in a variety of circumstances,
including in cases of harassment, workplace violence, potential
violence at a postsecondary school campus, domestic violence, child
abuse, and elder abuse. Existing law permits a court to terminate or
modify these protective orders, which may include stay-away and
residence exclusion orders, on written stipulation filed with the
court or on the motion of a party.
This bill would require, if an action is filed for the purpose of
terminating or modifying specified protective orders prior to their
expiration by a party other than the protected party, that the party
who is protected by the order be given notice, as specified, of the
proceeding to hear that action prior to the hearing, as specified.
The bill would require a court to deny the motion to modify or
terminate the order without prejudice or continue the hearing if the
party cannot be notified prior to the hearing, provided that upon a
showing of good cause, the bill would authorize a court to specify
another method for service of process that is reasonably designed to
afford actual notice to the protected party. The bill would permit
the protected person to waive his or right to notice under specified
circumstances.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 527.6 of the Code of Civil Procedure, as
amended by Section 1 of Chapter 572 of the Statutes of 2010, is
amended to read:
527.6. (a) (1) A person who has suffered harassment as defined in
subdivision (b) may seek a temporary restraining order and an
injunction prohibiting harassment as provided in this section.
(2) A minor, under 12 years of age, accompanied by a duly
appointed and acting guardian ad litem, shall be permitted to appear
in court without counsel for the limited purpose of requesting or
opposing a request for a temporary restraining order or injunction,
or both, under this section as provided in Section 374.
(b) For the purposes of this section:
(1) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual,
making harassing telephone calls to an individual, or sending
harassing correspondence to an individual by any means, including,
but not limited to, the use of public or private mails, interoffice
mail, fax, or computer e-mail. Constitutionally protected activity is
not included within the meaning of "course of conduct."
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Harassment" is unlawful violence, a credible threat of
violence, or a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, or harasses the
person, and that serves no legitimate purpose. The course of conduct
must be such as would cause a reasonable person to suffer substantial
emotional distress, and must actually cause substantial emotional
distress to the petitioner.
(4) "Petitioner" means the person to be protected by the temporary
restraining order and injunction and, if the court grants the
petition, the protected person.
(5) "Respondent" means the person against whom the temporary
restraining order and injunction are sought and, if the petition is
granted, the restrained person.
(6) "Temporary restraining order" and "injunction" mean orders
that include any of the following restraining orders, whether issued
ex parte or after notice and hearing:
(A) An order enjoining a party from harassing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, abusing, telephoning, including, but not
limited to, making annoying telephone calls, as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of the petitioner.
(B) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A).
(7) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(c) In the discretion of the court, on a showing of good cause, a
temporary restraining order or injunction issued under this section
may include other named family or household members.
(d) Upon filing a petition for an injunction under this section,
the petitioner may obtain a temporary restraining order in accordance
with Section 527, except to the extent this section provides a rule
that is inconsistent. The temporary restraining order may include any
of the restraining orders described in paragraph (6) of subdivision
(b). A temporary restraining order may be issued with or without
notice, based on a declaration that, to the satisfaction of the
court, shows reasonable proof of harassment of the petitioner by the
respondent, and that great or irreparable harm would result to the
petitioner.
(e) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(f) A temporary restraining order issued under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 21 days, or, if the court extends the time for hearing under
subdivision (g), not to exceed 25 days, unless otherwise modified or
terminated by the court.
(g) Within 21 days, or, if good cause appears to the court, 25
days from the date that a petition for a temporary order is granted
or denied, a hearing shall be held on the petition for the
injunction. If no request for temporary orders is made, the hearing
shall be held within 21 days, or, if good cause appears to the court,
25 days, from the date that the petition is filed.
(h) The respondent may file a response that explains, excuses,
justifies, or denies the alleged harassment or may file a
cross-petition under this section.
(i) At the hearing, the judge shall receive any testimony that is
relevant, and may make an independent inquiry. If the judge finds by
clear and convincing evidence that unlawful harassment exists, an
injunction shall issue prohibiting the harassment.
(j) (1) In the discretion of the court, an order issued after
notice and hearing under this section may have a duration of not more
than three years, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. These orders may be renewed, upon the
request of a party, for a duration of not more than three years,
without a showing of any further harassment since the issuance of the
original order, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. The request for renewal may be brought
at any time within the three months before the expiration of the
order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005, of the proceeding by personal
service or, if the protected party has satisfied the requirements of
Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1
of the Government Code, by service on the Secretary of State. If the
party who is protected by the order cannot be notified prior to the
hearing for modification or termination of the protective order, the
court shall deny the motion to modify or terminate the order without
prejudice or continue the hearing until the party who is protected
can be properly noticed and may, upon a showing of good cause,
specify another method for service of process that is reasonably
designed to afford actual notice to the protected party. The
protected party may waive his or her right to notice if he or she is
physically present in court and does not challenge the sufficiency of
the notice.
(k) This section does not preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) In a proceeding under this section if there are allegations of
unlawful violence or credible threats of violence, a support person
may accompany a party in court and, if the party is not represented
by an attorney, may sit with the party at the table that is generally
reserved for the party and the party's attorney. The support person
is present to provide moral and emotional support for a person who
alleges he or she is a victim of violence. The support person is not
present as a legal adviser and may not provide legal advice. The
support person may assist the person who alleges he or she is a
victim of violence in feeling more confident that he or she will not
be injured or threatened by the other party during the proceedings if
the person who alleges he or she is a victim of violence and the
other party are required to be present in close proximity. This
subdivision does not preclude the court from exercising its
discretion to remove the support person from the courtroom if the
court believes the support person is prompting, swaying, or
influencing the party assisted by the support person.
(m) Upon the filing of a petition for an injunction under this
section, the respondent shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may for good cause, on motion of the petitioner
or on its own motion, shorten the time for service on the respondent.
(n) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to three years.
(o) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(p) (1) If a respondent, named in a restraining order issued after
a hearing, has not been served personally with the order but has
received actual notice of the existence and substance of the order
through personal appearance in court to hear the terms of the order
from the court, no additional proof of service is required for
enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to the respondent at the most current address for the respondent
available to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with this temporary
restraining order and notice of hearing, but you do not appear at the
hearing either in person or by a lawyer, and a restraining order
that is the same as this temporary restraining order except for the
expiration date is issued at the hearing, a copy of the restraining
order will be served on you by mail at the following address: ____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(q) (1) Information on any temporary restraining order or
injunction relating to civil harassment issued by a court pursuant to
this section shall be transmitted to the Department of Justice in
accordance with either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or reissuance, extension, modification, or termination of the order,
and any subsequent proof of service, by the close of the business day
on which the order, reissuance, extension, modification, or
termination was made, to a law enforcement agency having jurisdiction
over the residence of the petitioner and to any additional law
enforcement agencies within the court's discretion as are requested
by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported
harassment.
(5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported harassment involving
the parties to the proceeding. The petitioner shall provide the
officer with an endorsed copy of the order and a proof of service
that the officer shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
harassment that a protective order has been issued under this
section, or that a person who has been taken into custody is the
subject of an order, if the protected person cannot produce a
certified copy of the order, a law enforcement officer shall
immediately attempt to verify the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and shall at that
time also enforce the order. Verbal notice of the terms of the order
shall constitute service of the order and is sufficient notice for
the purposes of this section and for the purposes of Section 273.6
and subdivision (g) of Section 12021 of the Penal Code.
(r) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(s) Any willful disobedience of any temporary restraining order or
injunction granted under this section is punishable pursuant to
Section 273.6 of the Penal Code.
(t) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm or ammunition while the protective
order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm or ammunition while the
protective order is in effect is punishable pursuant to subdivision
(g) of Section 12021 of the Penal Code.
(u) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of the Civil
Code or by Division 10 (commencing with Section 6200) of the Family
Code. This section does not preclude a petitioner from using other
existing civil remedies.
(v) (1) The Judicial Council shall develop forms, instructions,
and rules relating to matters governed by this section. The petition
and response forms shall be simple and concise, and their use by
parties in actions brought pursuant to this section shall be
mandatory.
(2) A temporary restraining order or injunction relating to civil
harassment issued by a court pursuant to this section shall be issued
on forms adopted by the Judicial Council of California and that have
been approved by the Department of Justice pursuant to subdivision
(i) of Section 6380 of the Family Code. However, the fact that an
order issued by a court pursuant to this section was not issued on
forms adopted by the Judicial Council and approved by the Department
of Justice shall not, in and of itself, make the order unenforceable.
(w) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against the petitioner,
or stalked the petitioner, or acted or spoken in any other manner
that has placed the petitioner in reasonable fear of violence, and
that seeks a protective or restraining order or injunction
restraining stalking or future violence or threats of violence, in
any action brought pursuant to this section. No fee shall be paid for
a subpoena filed in connection with a petition alleging these acts.
No fee shall be paid for filing a response to a petition alleging
these acts.
(x) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process by a sheriff or marshal of a protective order, restraining
order, or injunction to be issued, if either of the following
conditions apply:
(A) The protective order, restraining order, or injunction issued
pursuant to this section is based upon stalking, as prohibited by
Section 646.9 of the Penal Code.
(B) The protective order, restraining order, or injunction issued
pursuant to this section is based upon unlawful violence or a
credible threat of violence.
(2) The Judicial Council shall prepare and develop forms for
persons who wish to avail themselves of the services described in
this subdivision.
SEC. 2. Section 527.8 of the Code of Civil Procedure, as amended
by Section 2 of Chapter 572 of the Statutes of 2010, is amended to
read:
527.8. (a) Any employer, whose employee has suffered unlawful
violence or a credible threat of violence from any individual, that
can reasonably be construed to be carried out or to have been carried
out at the workplace, may seek a temporary restraining order and an
injunction on behalf of the employee and, at the discretion of the
court, any number of other employees at the workplace, and, if
appropriate, other employees at other workplaces of the employer.
(b) For the purposes of this section:
(1) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an employee to
or from the place of work; entering the workplace; following an
employee during hours of employment; making telephone calls to an
employee; or sending correspondence to an employee by any means,
including, but not limited to, the use of the public or private
mails, interoffice mail, fax, or computer e-mail.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Employer" and "employee" mean persons defined in Section 350
of the Labor Code. "Employer" also includes a federal agency, the
state, a state agency, a city, county, or district, and a private,
public, or quasi-public corporation, or any public agency thereof or
therein. "Employee" also includes the members of boards of directors
of private, public, and quasi-public corporations and elected and
appointed public officers. For purposes of this section only,
"employee" also includes a volunteer or independent contractor who
performs services for the employer at the employer's worksite.
(4) "Petitioner" means the employer that petitions under
subdivision (a) for a temporary restraining order and injunction.
(5) "Respondent" means the person against whom the temporary
restraining order and injunction are sought and, if the petition is
granted, the restrained person.
(6) "Temporary restraining order" and "injunction" mean orders
that include any of the following restraining orders, whether issued
ex parte or after notice and hearing:
(A) An order enjoining a party from harassing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, abusing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of the employee.
(B) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A).
(7) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
(d) In the discretion of the court, on a showing of good cause, a
temporary restraining order or injunction issued under this section
may include other named family or household members, or other persons
employed at the employee's workplace or workplaces.
(e) Upon filing a petition for an injunction under this section,
the petitioner may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the petitioner also files a
declaration that, to the satisfaction of the court, shows reasonable
proof that an employee has suffered unlawful violence or a credible
threat of violence by the respondent, and that great or irreparable
harm would result to an employee. The temporary restraining order may
include any of the protective orders described in paragraph (6) of
subdivision (b).
(f) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(g) A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 21 days, or if the court extends the time for hearing under
subdivision (h), not to exceed 25 days, unless otherwise modified or
terminated by the court.
(h) Within 21 days, or if good cause appears to the court, 25 days
from the date that a petition for a temporary order is granted or
denied, a hearing shall be held on the petition for the injunction.
If no request for temporary orders is made, the hearing shall be held
within 21 days, or, if good cause appears to the court, 25 days,
from the date that the petition is filed.
(i) The respondent may file a response that explains, excuses,
justifies, or denies the alleged unlawful violence or credible
threats of violence.
(j) At the hearing, the judge shall receive any testimony that is
relevant and may make an independent inquiry. Moreover, if the
respondent is a current employee of the entity requesting the
injunction, the judge shall receive evidence concerning the employer'
s decision to retain, terminate, or otherwise discipline the
respondent. If the judge finds by clear and convincing evidence that
the respondent engaged in unlawful violence or made a credible threat
of violence, an injunction shall issue prohibiting further unlawful
violence or threats of violence.
(k) (1) In the discretion of the court, an order issued after
notice and hearing under this section may have a duration of not more
than three years, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. These orders may be renewed, upon the
request of a party, for a duration of not more than three years,
without a showing of any further violence or threats of violence
since the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. The
request for renewal may be brought at any time within the three
months before the expiration of the order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005, of the proceeding by personal
service or, if the protected party has satisfied the requirements of
Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1
of the Government Code, by service on the Secretary of State. If the
party who is protected by the order cannot be notified prior to the
hearing for modification or termination of the protective order, the
court shall deny the motion to modify or terminate the order without
prejudice or continue the hearing until the party who is protected
can be properly noticed and may, upon a showing of good cause,
specify another method for service of process that is reasonably
designed to afford actual notice to the protected party. The
protected party may waive his or her right to notice if he or she is
physically present in court and does not challenge the sufficiency of
the notice.
(l) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(m) Upon filing of a petition for an injunction under this
section, the respondent shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the petitioner
or on its own motion, shorten the time
for service on the respondent.
(n) A notice of hearing under this section shall notify the
respondent that, if he or she does not attend the hearing, the court
may make orders against him or her that could last up to three years.
(o) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(p) (1) If a respondent, named in a restraining order issued under
this section after a hearing, has not been served personally with
the order but has received actual notice of the existence and
substance of the order through personal appearance in court to hear
the terms of the order from the court, no additional proof of service
is required for enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the person does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with this temporary
restraining order and notice of hearing, but you do not appear at the
hearing either in person or by a lawyer, and a restraining order
that is the same as this restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the following address: ____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(q) (1) Information on any temporary restraining order or
injunction relating to workplace violence issued by a court pursuant
to this section shall be transmitted to the Department of Justice in
accordance with either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of any order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, extension, modification,
or termination was made, to each law enforcement agency having
jurisdiction over the residence of the petitioner and to any
additional law enforcement agencies within the court's discretion as
are requested by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported
unlawful violence or a credible threat of violence.
(5) At the request of the petitioner, an order issued under this
section shall be served on the respondent, regardless of whether the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported unlawful violence or
a credible threat of violence involving the parties to the
proceedings. The petitioner shall provide the officer with an
endorsed copy of the order and proof of service that the officer
shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective
order has been issued under this section, or that a person who has
been taken into custody is the subject of an order, if the petitioner
or the protected person cannot produce an endorsed copy of the
order, a law enforcement officer shall immediately attempt to verify
the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and obtain the
respondent's address. The law enforcement officer shall at that time
also enforce the order, but may not arrest or take the respondent
into custody for acts in violation of the order that were committed
prior to the verbal notice of the terms and conditions of the order.
The law enforcement officer's verbal notice of the terms of the order
shall constitute service of the order and constitutes sufficient
notice for the purposes of this section and for the purposes of
Section 273.6 and subdivision (g) of Section 12021 of the Penal Code.
The petitioner shall mail an endorsed copy of the order to the
respondent's mailing address provided to the law enforcement officer
within one business day of the reported incident of unlawful violence
or a credible threat of violence at which a verbal notice of the
terms of the order was provided by a law enforcement officer.
(r) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm or ammunition while the protective
order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm or ammunition while the
protective order is in effect is punishable pursuant to subdivision
(g) of Section 12021 of the Penal Code.
(s) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
(t) Nothing in this section may be construed as expanding,
diminishing, altering, or modifying the duty, if any, of an employer
to provide a safe workplace for employees and other persons.
(u) (1) The Judicial Council shall develop forms, instructions,
and rules for relating to matters governed by this section. The forms
for the petition and response shall be simple and concise, and their
use by parties in actions brought pursuant to this section shall be
mandatory.
(2) A temporary restraining order or injunction relating to
unlawful violence or a credible threat of violence issued by a court
pursuant to this section shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(v) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against an employee of
the petitioner, or stalked the employee, or acted or spoken in any
other manner that has placed the employee in reasonable fear of
violence, and that seeks a protective or restraining order or
injunction restraining stalking or future violence or threats of
violence, in any action brought pursuant to this section. No fee
shall be paid for a subpoena filed in connection with a petition
alleging these acts. No fee shall be paid for filing a response to a
petition alleging these acts.
(w) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process by a sheriff or marshal of a temporary restraining order
or injunction to be issued pursuant to this section if either of the
following conditions apply:
(A) The temporary restraining order or injunction issued pursuant
to this section is based upon stalking, as prohibited by Section
646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued pursuant
to this section is based on unlawful violence or a credible threat of
violence.
(2) The Judicial Council shall prepare and develop forms for
persons who wish to avail themselves of the services described in
this subdivision.
SEC. 3. Section 527.85 of the Code of Civil Procedure, as amended
by Section 4 of Chapter 572 of the Statutes of 2010, is amended to
read:
527.85. (a) Any chief administrative officer of a postsecondary
educational institution, or an officer or employee designated by the
chief administrative officer to maintain order on the school campus
or facility, a student of which has suffered a credible threat of
violence made off the school campus or facility from any individual,
which can reasonably be construed to be carried out or to have been
carried out at the school campus or facility, may, with the written
consent of the student, seek a temporary restraining order and an
injunction, on behalf of the student and, at the discretion of the
court, any number of other students at the campus or facility who are
similarly situated.
(b) For the purposes of this section, the following definitions
shall apply:
(1) "Chief administrative officer" means the principal, president,
or highest ranking official of the postsecondary educational
institution.
(2) "Course of conduct" means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including any of the following:
(A) Following or stalking a student to or from school.
(B) Entering the school campus or facility.
(C) Following a student during school hours.
(D) Making telephone calls to a student.
(E) Sending correspondence to a student by any means, including,
but not limited to, the use of the public or private mails,
interoffice mail, fax, or computer e-mail.
(3) "Credible threat of violence" means a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(4) "Petitioner" means the chief administrative officer, or his or
her designee, who petitions under subdivision (a) for a temporary
restraining order and injunction.
(5) "Postsecondary educational institution" means a private
institution of vocational, professional, or postsecondary education.
(6) "Respondent" means the person against whom the temporary
restraining order and injunction are sought and, if the petition is
granted, the restrained person.
(7) "Student" means an adult currently enrolled in or applying for
admission to a postsecondary educational institution.
(8) "Temporary restraining order" and "injunction" mean orders
that include any of the following restraining orders, whether issued
ex parte, or after notice and hearing:
(A) An order enjoining a party from harassing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, abusing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of the student.
(B) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A).
(9) "Unlawful violence" means any assault or battery, or stalking
as prohibited in Section 646.9 of the Penal Code, but shall not
include lawful acts of self-defense or defense of others.
(c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
(d) In the discretion of the court, on a showing of good cause, a
temporary restraining order or injunction issued under this section
may include other named family or household members of the student,
or other students at the campus or facility.
(e) Upon filing a petition for an injunction under this section,
the petitioner may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the petitioner also files a
declaration that, to the satisfaction of the court, shows reasonable
proof that a student has suffered a credible threat of violence made
off the school campus or facility by the respondent, and that great
or irreparable harm would result to the student. The temporary
restraining order may include any of the protective orders described
in paragraph (8) of subdivision (b).
(f) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(g) A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 21 days, or if the court extends the time for hearing under
subdivision (h), not to exceed 25 days, unless otherwise modified or
terminated by the court.
(h) Within 21 days, or if good cause appears to the court, within
25 days, from the date that a petition for a temporary order is
granted or denied, a hearing shall be held on the petition for the
injunction. If no request for temporary orders is made, the hearing
shall be held within 21 days, or if good cause appears to the court,
25 days, from the date the petition is filed.
(i) The respondent may file a response that explains, excuses,
justifies, or denies the alleged credible threats of violence.
(j) At the hearing, the judge shall receive any testimony that is
relevant and may make an independent inquiry. Moreover, if the
respondent is a current student of the entity requesting the
injunction, the judge shall receive evidence concerning the decision
of the postsecondary educational institution decision to retain,
terminate, or otherwise discipline the respondent. If the judge finds
by clear and convincing evidence that the respondent made a credible
threat of violence off the school campus or facility, an injunction
shall be issued prohibiting further threats of violence.
(k) (1) In the discretion of the court, an order issued after
notice and hearing under this section may have a duration of not more
than three years, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. These orders may be renewed, upon the
request of a party, for a duration of not more than three years,
without a showing of any further violence or threats of violence
since the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. The
request for renewal may be brought at any time within the three
months before the expiration of the order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005, of the proceeding by personal
service or, if the protected party has satisfied the requirements of
Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1
of the Government Code, by service on the Secretary of State. If the
party who is protected by the order cannot be notified prior to the
hearing for modification or termination of the protective order, the
court shall deny the motion to modify or terminate the order without
prejudice or continue the hearing until the party who is protected
can be properly noticed and may, upon a showing of good cause,
specify another method for service of process that is reasonably
designed to afford actual notice to the protected party. The
protected party may waive his or her right to notice if he or she is
physically present in court and does not challenge the sufficiency of
the notice.
(l) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(m) Upon filing of a petition for an injunction under this
section, the respondent shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the petitioner
or on its own motion, shorten the time for service on the respondent.
(n) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to three years.
(o) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(p) (1) If a respondent, named in an order issued under this
section after a hearing, has not been served personally with the
order but has received actual notice of the existence and substance
of the order through personal appearance in court to hear the terms
of the order from the court, no additional proof of service is
required for enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to that person at the most current address for the respondent
available to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with a temporary restraining
order and notice of hearing, but you do not appear at the hearing
either in person or by a lawyer, and a restraining order that is the
same as this temporary restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the following address:____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(q) (1) Information on any temporary restraining order or
injunction relating to school site violence issued by a court
pursuant to this section shall be transmitted to the Department of
Justice in accordance with either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of any order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, or termination of the
order, and any proof of service, was made, to each law enforcement
agency having jurisdiction over the residence of the petition and to
any additional law enforcement agencies within the court's discretion
as are requested by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order of proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported
unlawful violence or a credible threat of violence.
(5) At the request of the petitioner, an order issued under this
section shall be served on the respondent, regardless of whether the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported unlawful violence or
a credible threat of violence involving the parties to the
proceedings. The petitioner shall provide the officer with an
endorsed copy of the order and proof of service that the officer
shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective
order has been issued under this section, or that a person who has
been taken into custody is the subject of an order, if the petitioner
or the protected person cannot produce an endorsed copy of the
order, a law enforcement officer shall immediately attempt to verify
the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and obtain the
respondent's address. The law enforcement officer shall at that time
also enforce the order, but may not arrest or take the respondent
into custody for acts in violation of the order that were committed
prior to the verbal notice of the terms and conditions of the order.
The law enforcement officer's verbal notice of the terms of the order
shall constitute service of the order and constitutes sufficient
notice for the purposes of this section, and Section 273.6 and
subdivision (g) of Section 12021 of the Penal Code. The petitioner
shall mail an endorsed copy of the order to the respondent's mailing
address provided to the law enforcement officer within one business
day of the reported incident of unlawful violence or a credible
threat of violence at which a verbal notice of the terms of the order
was provided by a law enforcement officer.
(r) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm or ammunition while the protective
order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9.
(3) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm or ammunition while the
protective order is in effect is punishable pursuant to subdivision
(g) of Section 12021 of the Penal Code.
(s) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
(t) Nothing in this section may be construed as expanding,
diminishing, altering, or modifying the duty, if any, of a
postsecondary educational institution to provide a safe environment
for students and other persons.
(u) (1) The Judicial Council shall develop forms, instructions,
and rules relating to matters governed by this section. The forms for
the petition and response shall be simple and concise, and their use
by parties in actions brought pursuant to this section shall be
mandatory.
(2) A temporary restraining order or injunction relating to
unlawful violence or a credible threat of violence issued by a court
pursuant to this section shall be issued on forms adopted by the
Judicial Council and that have been approved by the Department of
Justice pursuant to subdivision (i) of Section 6380 of the Family
Code. However, the fact that an order issued by a court pursuant to
this section was not issued on forms adopted by the Judicial Council
and approved by the Department of Justice shall not, in and of
itself, make the order unenforceable.
(v) There is no filing fee for a petition that alleges that a
person has threatened violence against a student of the petitioner,
or stalked the student, or acted or spoken in any other manner that
has placed the student in reasonable fear of violence, and that seeks
a protective or
restraining order or injunction restraining stalking or future
threats of violence, in any action brought pursuant to this section.
No fee shall be paid for a subpoena filed in connection with a
petition alleging these acts. No fee shall be paid for filing a
response to a petition alleging these acts.
(w) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process by a sheriff or marshal of a temporary restraining order
or injunction to be issued pursuant to this section if either of the
following conditions apply:
(A) The temporary restraining order or injunction issued pursuant
to this section is based upon stalking, as prohibited by Section
646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued pursuant
to this section is based upon a credible threat of violence.
(2) The Judicial Council shall prepare and develop forms for
persons who wish to avail themselves of the services described in
this subdivision.
SEC. 4. Section 6345 of the Family Code, as amended by Section 19
of Chapter 572 of the Statutes of 2010, is amended to read:
6345. (a) In the discretion of the court, the personal conduct,
stay-away, and residence exclusion orders contained in a court order
issued after notice and a hearing under this article may have a
duration of not more than five years, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. These
orders may be renewed, upon the request of a party, either for five
years or permanently, without a showing of any further abuse since
the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. The
request for renewal may be brought at any time within the three
months before the expiration of the orders.
(b) Notwithstanding subdivision (a), the duration of any orders,
other than the protective orders described in subdivision (a), that
are also contained in a court order issued after notice and a hearing
under this article, including, but not limited to, orders for
custody, visitation, support, and disposition of property, shall be
governed by the law relating to those specific subjects.
(c) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(d) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure, of
the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with Section
6205) of Division 7 of Title 1 of the Government Code, by service on
the Secretary of State. If the party who is protected by the order
cannot be notified prior to the hearing for modification or
termination of the protective order, the court shall deny the motion
to modify or terminate the order without prejudice or continue the
hearing until the party who is protected can be properly noticed and
may, upon a showing of good cause, specify another method for service
of process that is reasonably designed to afford actual notice to
the protected party. The protected party may waive his or her right
to notice if he or she is physically present in court and does not
challenge the sufficiency of the notice.
SEC. 5. Section 213.5 of the Welfare and Institutions Code, as
amended by Section 25 of Chapter 572 of the Statutes of 2010, is
amended to read:
213.5. (a) After a petition has been filed pursuant to Section
311 to declare a child a dependent child of the juvenile court, and
until the time that the petition is dismissed or dependency is
terminated, upon application in the manner provided by Section 527 of
the Code of Civil Procedure or in the manner provided by Section
6300 of the Family Code, if related to domestic violence, the
juvenile court has exclusive jurisdiction to issue ex parte orders
(1) enjoining any person from molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering, harassing,
telephoning, including, but not limited to, making annoying telephone
calls as described in Section 653m of the Penal Code, destroying the
personal property, contacting, either directly or indirectly, by
mail or otherwise, coming within a specified distance of, or
disturbing the peace of the child or any other child in the
household; and (2) excluding any person from the dwelling of the
person who has care, custody, and control of the child. A court may
also issue an ex parte order enjoining any person from molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, including, but not limited to,
making annoying telephone calls as described in Section 635m of the
Penal Code, destroying the personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of any parent, legal
guardian, or current caretaker of the child, regardless of whether
the child resides with that parent, legal guardian, or current
caretaker, upon application in the manner provided by Section 527 of
the Code of Civil Procedure or, if related to domestic violence, in
the manner provided by Section 6300 of the Family Code. A court may
also issue an ex parte order enjoining any person from molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, including, but not limited to,
making annoying telephone calls as described in Section 635m of the
Penal Code, destroying the personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the child's current
or former social worker or court appointed special advocate, upon
application in the manner provided by Section 527 of the Code of
Civil Procedure.
(b) After a petition has been filed pursuant to Section 601 or 602
to declare a child a ward of the juvenile court, and until the time
that the petition is dismissed or wardship is terminated, upon
application in the manner provided by Section 527 of the Code of
Civil Procedure or, if related to domestic violence, in the manner
provided by Section 6300 of the Family Code, the juvenile court may
issue ex parte orders (1) enjoining any person from molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, including, but not limited to,
making annoying telephone calls as described in Section 653m of the
Penal Code, destroying the personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the child or any
other child in the household; (2) excluding any person from the
dwelling of the person who has care, custody, and control of the
child; or (3) enjoining the child from contacting, threatening,
stalking, or disturbing the peace of any person the court finds to be
at risk from the conduct of the child, or with whom association
would be detrimental to the child. A court may also issue an ex parte
order enjoining any person from molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering, harassing,
telephoning, including, but not limited to, making annoying telephone
calls as described in Section 635m of the Penal Code, destroying the
personal property, contacting, either directly or indirectly, by
mail or otherwise, coming within a specified distance of, or
disturbing the peace of any parent, legal guardian, or current
caretaker of the child, regardless of whether the child resides with
that parent, legal guardian, or current caretaker, upon application
in the manner provided by Section 527 of the Code of Civil Procedure
or, if related to domestic violence, in the manner provided by
Section 6300 of the Family Code. A court may also issue an ex parte
order enjoining any person from molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering, harassing,
telephoning, including, but not limited to, making annoying telephone
calls as described in Section 635m of the Penal Code, destroying the
personal property, contacting, either directly or indirectly, by
mail or otherwise, coming within a specified distance of, or
disturbing the peace of the child's current or former probation
officer or court appointed special advocate, upon application in the
manner provided by Section 527 of the Code of Civil Procedure.
(c) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why the order should not be granted, on the earliest day that
the business of the court will permit, but not later than 21 days or,
if good cause appears to the court, 25 days from the date the
temporary restraining order is granted. The court may, on the motion
of the person seeking the restraining order, or on its own motion,
shorten the time for service of the order to show cause on the person
to be restrained. The court may, upon its own motion or the filing
of a declaration by the person seeking the restraining order, find
that the person to be restrained could not be served within the time
required by law and reissue an order previously issued and dissolved
by the court for failure to serve the person to be restrained. The
reissued order shall remain in effect until the date set for the
hearing. The reissued order shall state on its face the date of
expiration of the order. Any hearing pursuant to this section may be
held simultaneously with any regularly scheduled hearings held in
proceedings to declare a child a dependent child or ward of the
juvenile court pursuant to Section 300, 601, or 602, or subsequent
hearings regarding the dependent child or ward.
(d) (1) The juvenile court may issue, upon notice and a hearing,
any of the orders set forth in subdivisions (a), (b), and (c). Any
restraining order granted pursuant to this subdivision shall remain
in effect, in the discretion of the court, no more than three years,
unless otherwise terminated by the court, extended by mutual consent
of all parties to the restraining order, or extended by further order
of the court on the motion of any party to the restraining order.
(2) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure, of
the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with Section
6205) of Division 7 of Title 1 of the Government Code, by service on
the Secretary of State. If the party who is protected by the order
cannot be notified prior to the hearing for modification or
termination of the protective order, the juvenile court shall deny
the motion to modify or terminate the order without prejudice or
continue the hearing until the party who is protected can be properly
noticed and may, upon a showing of good cause, specify another
method for service of process that is reasonably designed to afford
actual notice to the protected party. The protected party may waive
his or her right to notice if he or she is physically present and
does not challenge the sufficiency of the notice.
(e) (1) The juvenile court may issue an order made pursuant to
subdivision (a), (b), or (d) excluding a person from a residence or
dwelling. This order may be issued for the time and on the conditions
that the court determines, regardless of which party holds legal or
equitable title or is the lessee of the residence or dwelling.
(2) The court may issue an order under paragraph (1) only on a
showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the other party or any other person under the care, custody,
and control of the other party, or any minor child of the parties or
of the other party.
(C) That physical or emotional harm would otherwise result to the
other party, to any person under the care, custody, and control of
the other party, or to any minor child of the parties or of the other
party.
(f) Any order issued pursuant to subdivision (a), (b), (c), or (d)
shall state on its face the date of expiration of the order.
(g) All data with respect to a juvenile court protective order, or
extension, modification, or termination thereof, granted pursuant to
subdivision (a), (b), (c), or (d), shall be transmitted by the court
or its designee, within one business day, to law enforcement
personnel by either one of the following methods:
(1) Transmitting a physical copy of the order to a local law
enforcement agency authorized by the Department of Justice to enter
orders into the California Law Enforcement Telecommunications System
(CLETS).
(2) With the approval of the Department of Justice, entering the
order into CLETS directly.
(h) Any willful and knowing violation of any order granted
pursuant to subdivision (a), (b), (c), or (d) shall be a misdemeanor
punishable under Section 273.65 of the Penal Code.
(i) A juvenile court restraining order related to domestic
violence issued by a court pursuant to this section shall be issued
on forms adopted by the Judicial Council of California and that have
been approved by the Department of Justice pursuant to subdivision
(i) of Section 6380 of the Family Code. However, the fact that an
order issued by a court pursuant to this section was not issued on
forms adopted by the Judicial Council and approved by the Department
of Justice shall not, in and of itself, make the order unenforceable.
(j) (1) Prior to a hearing on the issuance or denial of an order
under this part, a search shall be conducted as described in
subdivision (a) of Section 6306 of the Family Code.
(2) Prior to deciding whether to issue an order under this part,
the court shall consider the following information obtained pursuant
to a search conducted under paragraph (1): any conviction for a
violent felony specified in Section 667.5 of the Penal Code or a
serious felony specified in Section 1192.7 of the Penal Code; any
misdemeanor conviction involving domestic violence, weapons, or other
violence; any outstanding warrant; parole or probation status; any
prior restraining order; and any violation of a prior restraining
order.
(3) (A) If the results of the search conducted pursuant to
paragraph (1) indicate that an outstanding warrant exists against the
subject of the search, the court shall order the clerk of the court
to immediately notify, by the most effective means available,
appropriate law enforcement officials of any information obtained
through the search that the court determines is appropriate. The law
enforcement officials notified shall take all actions necessary to
execute any outstanding warrants or any other actions, as appropriate
and as soon as practicable.
(B) If the results of the search conducted pursuant to paragraph
(1) indicate that the subject of the search is currently on parole or
probation, the court shall order the clerk of the court to
immediately notify, by the most effective means available, the
appropriate parole or probation officer of any information obtained
through the search that the court determines is appropriate. The
parole or probation officer notified shall take all actions necessary
to revoke any parole or probation, or any other actions, with
respect to the subject person, as appropriate and as soon as
practicable.
(k) Upon making any order for custody or visitation pursuant to
this section, the court shall follow the procedures specified in
subdivisions (c) and (d) of Section 6323 of the Family Code.
SEC. 6. Section 15657.03 of the Welfare and Institutions Code, as
amended by Section 26 of Chapter 572 of the Statutes of 2010, is
amended to read:
15657.03. (a) (1) An elder or dependent adult who has suffered
abuse as defined in Section 15610.07 may seek protective orders as
provided in this section.
(2) A petition may be brought on behalf of an abused elder or
dependent adult by a conservator or a trustee of the elder or
dependent adult, an attorney-in-fact of an elder or dependent adult
who acts within the authority of the power of attorney, a person
appointed as a guardian ad litem for the elder or dependent adult, or
other person legally authorized to seek such relief.
(b) For the purposes of this section:
(1) "Conservator" means the legally appointed conservator of the
person or estate of the petitioner, or both.
(2) "Petitioner" means the elder or dependent adult to be
protected by the protective orders and, if the court grants the
petition, the protected person.
(3) "Protective order" means an order that includes any of the
following restraining orders, whether issued ex parte, after notice
and hearing, or in a judgment:
(A) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner.
(B) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(C) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A) or (B).
(4) "Respondent" means the person against whom the protective
orders are sought and, if the petition is granted, the restrained
person.
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if a declaration shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in paragraph (3) of subdivision (b). However, the court may
issue an ex parte order excluding a party from the petitioner's
residence or dwelling only on a showing of all of the following:
(1) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(2) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or a conservator of the petitioner.
(3) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or a conservator of the petitioner.
(e) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(f) Within 21 days, or, if good cause appears to the court, 25
days, from the date that a request for a temporary restraining order
is granted or denied, a hearing shall be held on the petition. If no
request for temporary orders is made, the hearing shall be held
within 21 days, or, if good cause appears to the court, 25 days, from
the date that the petition is filed.
(g) The respondent may file a response that explains or denies the
alleged abuse.
(h) The court may issue, upon notice and a hearing, any of the
orders set forth in paragraph (3) of subdivision (b). The court may
issue, after notice and hearing, an order excluding a person from a
residence or dwelling if the court finds that physical or emotional
harm would otherwise result to the petitioner, other named family or
household member of the petitioner, or conservator of the petitioner.
(i) (1) In the discretion of the court, an order issued after
notice and a hearing under this section may have a duration of not
more than five years, subject to termination or modification by
further order of the court either on written stipulation filed with
the court or on the motion of a party. These orders may be renewed
upon the request of a party, either for five years or permanently,
without a showing of any further abuse since the issuance of the
original order, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. The request for renewal may be brought
at any time within the three months before the expiration of the
order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure, of
the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with Section
6205) of Division 7 of Title 1 of the Government Code, by service on
the Secretary of State. If the party who is protected by the order
cannot be notified prior to the hearing for modification or
termination of the protective order, the court shall deny the motion
to modify or terminate the order without prejudice or continue the
hearing until the party who is protected can be properly noticed and
may, upon a showing of good cause, specify another method for service
of process that is reasonably designed to afford actual notice to
the protected party. The protected party may waive his or her right
to notice if he or she is physically present in court and does not
challenge the sufficiency of the notice.
(j) In a proceeding under this section, a support person may
accompany a party in court and, if the party is not represented by an
attorney, may sit with the party at the table that is generally
reserved for the party and the party's attorney. The support person
is present to provide moral and emotional support for a person who
alleges he or she is a victim of abuse. The support person is not
present as a legal adviser and may not provide legal advice. The
support person may assist the person who alleges he or she is a
victim of abuse in feeling more confident that he or she will not be
injured or threatened by the other party during the proceedings if
the person who alleges he or she is a victim of abuse and the other
party are required to be present in close proximity. This subdivision
does not preclude the court from exercising its discretion to remove
the support person from the courtroom if the court believes the
support person is prompting, swaying, or influencing the party
assisted by the support person.
(k) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any declarations in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(l) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to five years.
(m) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(n) (1) If a respondent, named in an order issued under this
section after a hearing, has not been served personally with the
order but has received actual notice of the existence and substance
of the order through personal appearance in court to hear the terms
of the order from the court, no additional proof of service is
required for enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to the respondent at the most current address for the respondent
that is available to the court.
(3) The Judicial
Council form for temporary orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form:
"If you have been personally served with a temporary restraining
order and notice of hearing, but you do not appear at the hearing
either in person or by a lawyer, and a restraining order that is the
same as this temporary restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the following address: ____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(o) (1) Information on any protective order relating to elder or
dependent adult abuse issued by a court pursuant to this section
shall be transmitted to the Department of Justice in accordance with
either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, extension, modification,
or termination was made, to each law enforcement agency having
jurisdiction over the residence of the petitioner, and to any
additional law enforcement agencies within the court's discretion as
are requested by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(p) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(q) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(r) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this section.
(s) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(t) (1) A person subject to a protective order under this section
shall not own, possess, purchase, receive, or attempt to receive a
firearm or ammunition while the protective order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm or ammunition while subject
to a protective order issued under this section is punishable
pursuant to subdivision (g) of Section 12021 of the Penal Code.
(4) This subdivision shall not apply in a case in which the
protective order issued under this section was made solely on the
basis of financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(u) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(v) This section does not apply to any action or proceeding
governed by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(w) The Judicial Council shall develop forms, instructions, and
rules relating to matters governed by this section. The petition and
response forms shall be simple and concise, and their use by parties
in actions brought pursuant to this section shall be mandatory.