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 (more) AB 454 (Silva) Page 2 of ? 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 AB 454 (Silva) Page 3 of ? 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 AB 454 (Silva) Page 4 of ? 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.) AB 454 (Silva) Page 5 of ? 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 AB 454 (Silva) Page 6 of ? 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 AB 454 (Silva) Page 7 of ? 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 AB 454 (Silva) Page 8 of ? 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 AB 454 (Silva) Page 9 of ? 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); AB 454 (Silva) Page 10 of ? 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) **************