BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 454|
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                                SPECIAL CONSENT


          Bill No:  AB 454
          Author:   Silva (R)
          Amended:  5/27/11 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  5-0, 6/7/11
          AYES:  Evans, Harman, Blakeslee, Corbett, Leno
           
          ASSEMBLY FLOOR  :  71-0, 3/25/11 - See last page for vote


           SUBJECT  :    Protective orders:  early termination

           SOURCE  :     Conference of California Bar Associations


           DIGEST  :    This bill requires 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.  This bill 
          requires 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 provides 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/her right to that notice if he/she is physically 
          present in court and does not challenge the sufficiency of 
          the notice.
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           ANALYSIS  :    Existing law requires that written notice be 
          given for specified motions, including for any other 
          proceeding under the Code of Civil Procedure (CCP) in which 
          notice is required and no other time or method is 
          prescribed by law or by court or judge.  (CCP Section 
          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.  (CCP 
          Section 1005(b))

          Existing law creates the Safe at Home Program administered 
          by the Secretary of State (SOS) in order to protect the 
          changed name or location of a victim of domestic violence, 
          sexual assault, or stalking.  (Government Code ŬGOV] 
          Section 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 SOS to have an address designated by the SOS 
          serve as the person's address or the address of the minor 
          or incapacitated person.  (GOV Section 6206(a)) 

          Existing law provides that a person who has suffered 
          harassment as defined by statute, may seek a temporary 
          restraining order (TRO) and an injunction prohibiting 
          harassment.  (CCP Section 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.  (CCP Sections 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: 

          1.   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 

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             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. 

          2.   An order enjoining a party from specified behavior 
             that the court determines is necessary to effectuate 
             orders described in (A).  (CCP Section 527.6) 

          Existing law permits an elder or dependent adult who has 
          suffered abuse, or his/her conservator, trustee, 
          attorney-in-fact acting within the power of attorney, or 
          guardian ad litem, to seek protective orders.  (Welfare and 
          Institutions Code ŬWIC] Section 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/her 
          name and third party other than the petitioner.  (WIC 
          Section 15657.03)

          Existing law permits a court to issue protective orders in 
          various circumstances, including the following: 

          1. 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 harm would result to the petitioner.  (CCP 
             Section 527.6.)  Existing law regarding employers and 
             chief administrative officers seeking TROs on behalf of 
             an employee or student is substantially similar.  (CCP 
             Sections 527.8 and 527.85)   

          2. 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 

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             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.  (Family Code ŬFC] Section 
             6320(a))  

          3. A juvenile court, upon application by a party as 
             specified, has exclusive jurisdiction to issue ex parte 
             orders:  (a) enjoining any person from molesting, 
             attacking, striking, sexually assaulting, stalking, or 
             battering the child or any other child in the household; 
             (b) excluding any person from the dwelling of a person 
             who has care, custody and control of the child; and (c) 
             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 (a) or (b).  (WIC Section 213.5)   

          4. 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.  (WIC Section 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.  (CCP Sections 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.  (FC Section 
          6345) 

          Existing law permits the court to issue, upon notice and 
          hearing, any of the orders set forth by that section, and 

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          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.  (WIC Section 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.  (WIC Section 
          15657.03)  

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

          This bill requires that notice be given by personal service 
          or by service on the SOS if the protected party is 
          registered with the Safe at Home Program, in accordance 
          with Section 1005(b) of the CCP.  

          This bill requires 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 this bill.  

          This bill provides that a protected party may waive his/her 
          right to notice if he/she is physically present in court 
          and does not challenge the sufficiency of the notice.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  6/8/11)

          Conference of California Bar Associations (source)
          California Commission on the Status of Women 
          California National Organization for Women 
          California Partnership to End Domestic Violence 
          California Probation Parole and Correctional Association 

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          Chief Probation Officers of California
          Executive Committee of the Family Law Section of the State 
          Bar of California


          ARGUMENTS IN SUPPORT  :    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 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 this bill's sponsor, the Conference of 
          California Bar Associations, "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 this bill's supporters, the California 
          Partnership to End Domestic Violence: 

            "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 

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            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 . . ."


           ASSEMBLY FLOOR  :  71-0, 3/25/11
          AYES:  Achadjian, Alejo, Ammiano, Atkins, Beall, Bill 
            Berryhill, Block, Blumenfield, Bonilla, Bradford, 
            Brownley, Buchanan, Butler, Charles Calderon, Campos, 
            Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, 
            Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Galgiani, 
            Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall, 
            Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, 
            Huffman, Jeffries, Knight, Logue, Bonnie Lowenthal, Ma, 
            Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell, 
            Nestande, Olsen, Pan, Perea, V. Manuel Pérez, Portantino, 
            Silva, Skinner, Smyth, Solorio, Torres, Valadao, Wagner, 
            Wieckowski, Williams, Yamada, John A. Pérez
          NO VOTE RECORDED:  Allen, Donnelly, Gorell, Jones, Lara, 
            Nielsen, Norby, Swanson, Vacancy


          RJG:kc  6/24/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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