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)
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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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