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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