BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 454 (Silva)
          As Amended May 27, 2011
          Hearing Date: June 7, 2011
          Fiscal: No
          Urgency: No
          RD   
                    

                                        SUBJECT
                                           
                        Protective Orders: Early Termination

                                      DESCRIPTION  

          This bill would require that a party protected by a protective 
          order receive notice when an action is filed by another party to 
          terminate or modify that order in advance of the expiration date 
          specified by the order, prior to the court making any judgment 
          on that action.   It would require notice be given by personal 
          service or by service on the Secretary of State if the protected 
          party is registered with the Safe at Home Program, as specified. 
           

          This bill would provide that if the protected party cannot be 
          notified prior to the hearing, the court must either deny the 
          motion to modify or terminate the order without prejudice or 
          continue the hearing until the protected party is properly 
          noticed as specified.  A protected party may waive his or her 
          right to that notice if he or she is physically present in court 
          and does not challenge the sufficiency of the notice.

                                      BACKGROUND  

          California law generally requires that, prior to a hearing, 
          written notice be provided by the party making a motion or 
          filing an application in court.  The notice of motion is the 
          formal statement that identifies the time, date, and place of 
          hearing, the nature of the order being sought, the grounds for 
          the motion, and the documents and other items that support the 
          motion.  (Code of Civ. Proc. Sec. 1010.)   Existing law 
          specifically outlines those motions requiring written notice, as 
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          well as time periods for making or opposing written motions.  Ex 
          parte orders, by the court however, are court orders granted 
          upon application by a party without serving a notice of motion 
          on adverse parties. 

          Existing law provides for protective orders (temporary 
          restraining orders (TROs) and injunctions) to be issued, with or 
          without notice.  These provisions also provide for the 
          modification and termination of those orders prior to the set 
          date of expiration.  While TROs may be obtained under specified 
          circumstances without notice, notice is generally required for 
          obtaining injunctive orders.  

          This bill, sponsored by the Conference of California Bar 
          Associations (CCBA), seeks to guarantee that a person protected 
          by a protective order receives timely notice prior to a hearing 
          whenever another party files an action seeking to terminate or 
          modify the protective order prior to the order's expiration 
          date.  

                                CHANGES TO EXISTING LAW
           
           Existing law  requires that written notice be given for specified 
          motions, including for any other proceeding under the Code of 
          Civil Procedure in which notice is required and no other time or 
          method is prescribed by law or by court or judge.  (Code of Civ. 
          Proc. Sec. 1005(a).)  Existing law further requires, unless 
          otherwise ordered or specifically provided by law, that all 
          moving and supporting papers be served and filed at least 16 
          court days before the hearing, with an additional five calendar 
          days if the notice is by mail within the state.  The court may 
          also prescribe a shorter period for notice.  (Code of Civ. Proc. 
          Sec. 1005(b).)

           Existing law  creates the Safe at Home Program administered by 
          the Secretary of State in order to protect the changed name or 
          location of a victim of domestic violence, sexual assault, or 
          stalking.  (Gov. Code Sec. 6205 et seq.)  Under this program, an 
          adult person, a parent or guardian acting on behalf of a minor, 
          or a guardian acting on behalf of an incapacitated person, may 
          apply to the Secretary of State to have an address designated by 
          the Secretary of State serve as the person's address or the 
          address of the minor or incapacitated person.  (Gov. Code Sec. 
          6206(a).) 
           
          Existing law  provides that a person who has suffered harassment 
                                                                      



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          as defined by statute, may seek a temporary restraining order 
          (TRO) and an injunction prohibiting harassment.  (Code of Civ. 
          Proc. Sec. 527.6.)  Existing law also permits an employer or 
          chief administrative officer, whose employee or student has 
          suffered unlawful violence or credible threat of violence from 
          any individual, to seek a TRO and an injunction on behalf of 
          that employee or student.  (Code of Civ. Proc. Secs. 527.8 and 
          527.85.)   

           Existing law  defines "TRO" and "injunction" as 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 Penal Code 653m, 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 (A).  (Code of Civ. Proc. Sec. 527.6.) 

           Existing law  permits an elder or dependent adult who has 
          suffered abuse, or his or her conservator, trustee, 
          attorney-in-fact acting within the power of attorney, or 
          guardian ad litem, to seek protective orders.  (Welf. & Inst. 
          Code Sec. 15657.03.)

           Existing law  defines "protective order" with respect to an elder 
          or dependent adult who has suffered abuse as an order that 
          includes any of the following restraining orders, whether issued 
          ex parte, after notice and hearing, or in a judgment, as 
          specified.  This section also adds a third type of restraining 
          order that excludes a party from the petitioner's residence or 
          dwelling, except where legal or equitable title to, or lease of, 
          the residence or dwelling is in the sole name of the party to be 
          excluded or his or her name and third party other than the 
          petitioner.  (Welf. & Inst. Code Sec. 15657.03.)

           Existing law  permits a court to issue protective orders in 
          various circumstances, including the following: 
           a court may grant a TRO with or without notice, based on a 
            declaration that, to the satisfaction of the court, shows 
            reasonable proof of harassment and that greater or irreparable 
                                                                      



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            harm would result to the petitioner.  (Code of Civ. Proc. Sec. 
            527.6.)  Existing law regarding employers and chief 
            administrative officers seeking TROs on behalf of an employee 
            or student is substantially similar.  (Code of Civ. Proc. 
            Secs. 527.8 and 527.85.)   
           a court may issue an ex parte order enjoining a party from 
            molesting, attacking, striking, stalking, threatening, 
            sexually assaulting, battering, harassing, telephoning, 
            including, but not limited to, making annoying telephone calls 
            as described in Penal Code Section 653m, destroying personal 
            property, contacting, either directly or indirectly, by mail 
            or otherwise, coming within a specified distance of, or 
            disturbing the peace of the other party, and in the discretion 
            of the court on a showing of good cause, of other named family 
            or household members.  (Fam. Code Sec. 6320(a).)  
           a juvenile court, upon application by a party as specified, 
            has exclusive jurisdiction to issue ex parte orders:  (1) 
            enjoining any person from molesting, attacking, striking, 
            sexually assaulting, stalking, or battering the child or any 
            other child in the household; (2) excluding any person from 
            the dwelling of a person who has care, custody and control of 
            the child; and (3) enjoining any person from behavior 
            including contacting, threatening or disturbing the peace of 
            the child, that the court determines is necessary to 
            effectuate orders under (1) or (2).  (Welf. & Inst. Code Sec. 
            213.5.)   
           a court may issue an order, with or without notice, to 
            restrain any person for the purpose of preventing recurring 
            abuse, if a declaration shows, to the satisfaction of the 
            court, reasonable proof of past act or acts of abuse of the 
            petitioning elder or dependent adult.  (Welf. & Inst. Code 
            Sec. 15657.03.)  

           Existing law  provides that an order issued after notice and 
          hearing may have a duration of not more than three years, 
          subject to termination or modification by further court order, 
          either on written stipulation filed with the court or motion of 
          a party.  (Code of Civ. Proc. Secs. 527.6, 527.8, and 527.85.)  

           Existing law  provides that the personal conduct, stay away, and 
          residence exclusion orders contained in a court order issued 
          after a notice and hearing may have a duration of not more than 
          five years, subject to termination or modification of the court, 
          either on written stipulation filed with the court or motion of 
          a party.  (Fam. Code Sec. 6345.) 

                                                                      



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           Existing law  permits the court to issue, upon notice and 
          hearing, any of the orders set forth by that section, and 
          provides that any restraining order granted pursuant to this 
          subdivision shall remain in effect 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.  (Welf. & Inst. Code Sec. 213.5.)  

          Existing law  provides that an order issued after notice and a 
          hearing under the 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 motion of a party.  (Welf. & Inst. Code Sec. 
          15657.03.)  

           This bill  would require that a party protected by a protective 
          order receive notice of any action filed by another party 
          seeking to terminate or modify the protective order prior to the 
          expiration date specified in the order.  

           This bill  would require that notice be given by personal service 
          or by service on the Secretary of State if the protected party 
          is registered with the Safe at Home Program, in accordance with 
          Section 1005(b) of the Code of Civil Procedure.  

           This bill  would require that, if the protected party cannot be 
          notified prior to the hearing, the court either deny the motion 
          to modify or terminate the order without prejudice or continue 
          the hearing until the protected party is properly noticed, as 
          specified in the bill.  

           This bill  would provide that a 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.

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author: 

            Existing law permits a court to terminate a protective order 
            prior to the time set for expiration or to modify a protective 
            order under specified circumstances, but does not specifically 
            require that the party protected by the order receive notice 
                                                                      



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            of the hearing at which termination or modification will be 
            considered.  Without such notification, an order could be 
            modified or terminated without the knowledge of the individual 
            (victim) the order is designed to protect. 
            AB 454 would require that persons protected by civil 
            protective orders receive notice, by personal service, of any 
            hearing scheduled to modify or terminate the protective order 
            before its expiration date.  If the protected party cannot be 
            notified prior to the hearing, the bill requires that the 
            motion to modify or terminate the order be denied, or the 
            hearing continued until the protected party can be properly 
            notified. 

          According to the bill's sponsor, the CCBA, "Ŭr]estraining orders 
          are issued specifically to provide protection for some 
          individuals from violence or threat of violence by others.  
          Because these circumstances involve a heightened potential for 
          physical danger and death, the notice requirements for 
          terminating or reducing the protection provided by these orders 
          early should be heightened as well, to ensure to the extent 
          possible that protected parties receive actual notice.  AB 454 
          would help accomplish this important goal."  

          According to one of the bill's supporters, the California 
          Partnership to End Domestic Violence (CPEDV): 

            Presently the notice requirements are not uniform, Ŭand] can 
            vary from a declaration of service by mail to a certified mail 
            notice.  AB 454 will ensure uniform statutory requirements for 
            early termination or modification of restraining orders. . . . 
             While a restraining order assists victims in ending the cycle 
            of abuse, the ability of the restrained party to easily 
            petition for early termination or modification of the order, 
            without proper notice, results in continuation of the power 
            and control relationship between the abuser and the protected 
            party.  AB 454 will add an essential layer of protection by 
            requiring strict and clear notice to be given to the protected 
            party before the court can change the nature of a restraining 
            order.  This bill would prevent restrained parties from using 
            confusing and ambiguous notice requirements under California 
            Civil Procedure . . . 

          2.    Notice to victims when a motion is filed to modify or 
            terminate a protective order  

          This bill seeks to guarantee victims receive proper notice when 
                                                                      



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          another party attempts to change or terminate a protective 
          order.  In its report entitled Public Policy Agenda and 
          Proposals to the Governor and State Legislature: 2009-2010 
          Session, the California Commission on the Status of Women (CCSW) 
          recommended legislation to "Ŭr]equire that a person who obtains 
          a restraining order be notified when a termination hearing is 
          scheduled and/or when the restraining order has been terminated 
          by the courts." (CCSW, 2009-2010 Public Policy Agenda and 
          Proposals, pages 17-18; 
          <  http://www.women.ca.gov/images/pdf/issues/1073.2009.2010publicpo
          licyagenda.pdf  > Ŭas of May 31, 2011].)

          Although general rules provided under the Code of Civil 
          Procedure regarding notice would presumably apply to any 
          subsequent motions to terminate or modify the order thereof, 
          proponents of this bill point to a gap in law in practice with 
          respect to making notice mandatory for any modifications or 
          terminations of the protective orders. 

            a.    Notice under existing law  

            As a matter of public policy, it is important that a person 
            protected by a protective order receive notice and the 
            opportunity to object to any request to modify or terminate 
            the order.  This is especially the case because that 
            individual is likely relying on the date set in the original 
            order and his or her safety may be at risk.  The question then 
            becomes whether there are adequate safeguards under existing 
            law to ensure that the protective party receives such notice. 

            As a general rule, any motions made by a party require notice 
            of a hearing to be made upon the other party and ex parte 
            applications can only be permitted in limited circumstances: 
            where the order is one on which the adverse party does not 
            have a right to be heard in opposition (e.g. preliminary 
            matters such as appointment of a guardian ad litem), or where 
            there is a pressing necessity for immediate relief, as in 
            applications for orders shortening or extending time to serve 
            notice or schedule a deposition, and in TRO and receivership 
            cases (6 Witkin California Procedure (5th ed. 2008) 
            Proceedings Without Trial, Ex Parte Application, In General, 
            Sec. 58(2), pg. 484.)  And while most provisions on 
            injunctions require notice be provided to the party against 
            whom the injunction is sought in order for a petitioner to 
            obtain the injunction, there is no existing provision that 
            explicitly provides notice requirements regarding a motion of 
                                                                      



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            a party to modify or terminate those orders in advance of the 
            orders' expiration dates.  

            Even where a statute is silent on the issue of notice, notice 
            is usually considered essential in any application affecting 
            the rights of an adverse party, unless there is a pressing 
            necessity for dispensing with it.  (McDonald v. Severy (1936) 
            6 C.2d 629, 631.)   Arguably, under the McDonald v. Severy 
            holding, given that notice here should be considered essential 
            to the rights of the adverse (i.e. protected) party, the 
            courts should be requiring that notice be provided to the 
            protected party prior to the hearing.  This bill, however, 
            would remove any ambiguity in existing law by making the 
            notice requirement explicit where a party other than the party 
            protected by the protective order seeks to modify or terminate 
            the order, and specifying the manner in which notice is to be 
            provided as pursuant to Section 1005(b) of the Code of Civil 
            Procedure (providing that notice must be 16 court days' prior 
            to the hearing, with an additional five calendar days if 
            notice is by mail).  

            b.    Waivers of notice  

            This bill provides that a person may waive his or her right to 
            notice by physically appearing in court and failing to 
            challenge the sufficiency of notice.  Generally, under 
            existing law, the defect of failure to serve proper notice may 
            be cured by the appearance of counsel and participation in the 
            hearing without objection. (See e.g. Lacey v. Bertone (1949) 
            33 C.2 649, 651; Mann v. Cracchiolo (1985) 38 C.3d 17, 27; 
            Simmons v. Simmons (1941) 45 CA.2d 695; 696.)  In Carlton v. 
            Quaint (2000), the court held that the plaintiff waived claim 
            of inadequate notice by filing opposition to the defendant's 
            motion for summary judgment, appearing and arguing at the 
            hearing, failing to request continuance, and failing to claim 
            prejudice due to insufficient notice.  (77 CA.4th 690, 697.)  
            AB 454's provision regarding waiver of notice is therefore in 
            line with existing law in this regard.  

          3.    AB 454 provides for meaningful and uniform notice  
           
           By cross-referencing Section 1005(b) of the Code of Civil 
          Procedure which generally requires 16 court days' notice, AB 454 
          seeks to guarantee that meaningful notice will be given to the 
          party protected by the order and who, presumably, would object 
          to the premature termination or modification of the order 
                                                                      



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          protecting them from violence, the threat of violence, or other 
          form of unlawful harassment.  This bill's cross-reference to 
          Section 1005(b) further eliminates any risk that the courts may 
          apply varying timing requirements for that notice.  Throughout 
          the Code of Civil Procedure, Family Code, and Welfare and 
          Institutions Code, notice can vary from as much as 16 days, to 
          five days, to 10 a.m. the day before the hearing.  This bill 
          would make the notice 16 days in advance of the hearing, with an 
          additional five days for notice by mail, as is the case when 
          notice must be provided to the Secretary of State for those 
          parties who are registered in the Safe at Home Program.  Thus, 
          the effect of this bill would be to provide for both uniform and 
          meaningful notice to this vulnerable population.  

          4.    Competing interests of parties involved  

          While it is plausible that a party may face circumstances that 
          require a modification or termination of an order in a shorter 
          time frame than the 16 days' notice required by this bill 
          pursuant to Section 1005(b) of the Code of Civil Procedure (for 
          example, start of a new job in an area enjoined from entering), 
          public policy here would dictate that the interest of protecting 
          victims of violence or threats of violence from new or further 
          physical and/or psychological harm would take precedence above 
          any other interests of parties who are enjoined by the 
          protective party.  The court may still find that the order 
          should be modified or terminated in advance of the expiration 
          date upon a hearing, but in the interest of public policy, the 
          person protected by the order should be given sufficient advance 
          notice to appear in court and oppose any modification or 
          termination and provide their evidence for why the other party's 
          motion should not be granted in light of the danger posed to the 
          victim.   Moreover, Section 1005(b) would permit the court to 
          shorten the timing of notice if it deems appropriate under 
          specific circumstances. 

          5.  Chaptering-out issues
           
          Staff notes that AB 1402 (Committee on Public Safety), relating 
          to the deadly weapons statutes, would amend several of the same 
          sections amended by this bill and double-jointing language must 
          be added to the bill before it leaves the Senate to avoid any 
          chaptering-out of this bill's provisions.  


           Support  :  California Commission on the Status of Women (CCSW); 
                                                                      



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          California National Organization for Women (CA NOW); California 
          Partnership to End Domestic Violence (CPEDV); California 
          Probation Parole and Correctional Association (CPPCA); Chief 
          Probation Officers of California; Executive Committee of the 
          Family Law Section of the State Bar of California (FLEXCOM)

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Conference of California Bar Associations (CCBA)

           Related Pending Legislation  :  AB 1402 (Committee on Public 
          Safety), in relevant part, makes technical, non-substantive 
                    amendments to Sections 527.6, 527.8, 527.85 of the Code of Civil 
          Procedure and 15657.03 of the Welfare and Institutions Code.  
          This bill has been referred to the Senate Public Safety 
          Committee. 

           Prior Legislation  :

          AB 1596 (Hayashi, Ch. 572, Stats. 2010), implemented 
          recommendations of the Judicial Council's Protective Orders 
          Working Group, to take effect January 1, 2012, which, among 
          other things, provided that a court must hold a hearing on a 
          petition for a civil harassment or workplace violence 
          restraining order within 21 days from the date a temporary 
          restraining order is granted or denied, or within 25 days, if 
          good cause appears to the court.

          AB 99 (Cohn, Ch. 125, Stats. 2005) extended the maximum duration 
          of a protective order from three years to up to five years, and 
          extended the duration of a protective order renewal an 
          additional five years instead of three years.  

           Prior Vote  :

          Assembly Floor (Ayes 72, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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