BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 454
                                                                  Page  1

          CONCURRENCE IN SENATE AMENDMENTS
          AB 454 (Silva)
          As Amended May 27, 2011
          Majority vote
           
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          |ASSEMBLY:  |71-0 |(March 25,      |SENATE: |37-0 |(June 27,      |
          |           |     |2011)           |        |     |2011)          |
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           Original Committee Reference:   JUD.  

           SUMMARY  :  Requires that a party protected by a civil protective 
          order be notified prior to a hearing to modify that order or 
          terminate it before its expiration date.  Specifically,  this 
          bill  :  

          1)Requires, if an action is filed for the purpose of terminating 
            or modifying a civil protective order prior to the expiration 
            date specified in the order by a party other than the 
            protected person, the party who is protected by the order 
            shall be notified of the hearing prior to that hearing by 
            either personal service or mail with return receipt required. 

          2)Requires that if the party protected by the order cannot be 
            notified prior to the hearing the court shall deny the motion 
            to modify or terminate the order without prejudice, or 
            continue the hearing until the protected party can be properly 
            notified. 

          3)Provides that a party protected by a protective order may 
            waive his or her right to notice if he or she is physically 
            present in court and requests that the court take action on 
            the termination or modification request. 

           The Senate amendments  add consistent notice requirements.
           
          EXISTING LAW  :

          1)Authorizes a court to issue a protective order for a duration 
            of not more than five years.  

          2)Authorizes a court to terminate or modify a protective order 
            by further order of the court.  









                                                                  AB 454
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          3)Requires that a petitioner show, to the satisfaction of the 
            court, reasonable proof of a past act or acts of abuse before 
            a protective order will be issued.  

          4)Allows for the renewal of a protective order for an additional 
            five years, or permanently, without any additional showing of 
            abuse since the initial order.  

          5)Allows a court to issue a civil harassment protective order, 
            workplace violence protective order, or postsecondary 
            education protective order for up to three years upon a 
            showing of clear and convincing evidence.  

          6)Permits a juvenile court to issue a protective order on behalf 
            of a dependent child or a ward of the state for a duration of 
            up to three years.  

          7)Allows a court to issue a protective order on behalf of an 
            elder or dependent adult for a duration of up to three years.  


          8)Allows a law enforcement officer to seek an emergency 
            protective order (EPO) from a court, 24 hours a day, seven 
            days a week, if any person or child is in immediate and 
            present danger of domestic violence or abuse or stalking, or 
            in imminent danger of abduction by a parent or relative.  An 
            EPO is effective for up to seven days.  

           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar 
          to the version approved by the Senate.
           
          FISCAL EFFECT  :  None
           
          COMMENTS :  This non-controversial bill, sponsored by the 
          Conference of California Bar Association (CCBA), seeks to ensure 
          that a person protected by a civil protective order receives 
          actual notice of a special or ex parte hearing set to terminate, 
          shorten the duration of, or otherwise modify that protective 
          order. 

          In support of the measure the author explains that, 
          "r]estraining orders are typically issued to protect people 
          from violence or threat of violence.  Since this circumstance 
          provides a heightened potential for physical danger and death, 
          the notice requirements for terminating the protection early 








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          should be heightened as well."

          After the court issues a civil protective order, existing law 
          allows the court, on motion from a party, to terminate, shorten, 
          or otherwise modify the protective order.  However, under 
          current law if a restrained party makes the motion to modify or 
          terminate the protective order, the party that is intended to be 
          protected by the protective order does not receive the same 
          notice of the hearing or opportunity to present his or her case 
          to the court that was extended to the defendant at the time the 
          protective order was originally issued. 

          It is possible that, absent a guarantee of notification of the 
          hearing for the protected party, a protective order could be 
          modified or terminated entirely without the person the order is 
          designed to protect having any knowledge of the alteration until 
          after it has occurred.  Allowing for a civil protective order to 
          be modified or terminated without ensuring that the protected 
          party receives prior notice of the hearing could potentially 
          exacerbate the problem of violence, which is highlighted in a 
          report by the California Commission on the Status of Women 
          (CCSW) in 2008 that notes in part:

               Violence against women has wide-ranging and long-term 
               physical and psychological effects on victims and 
               their children. . . . Six percent of California women 
               suffer physical injuries from domestic violence every 
               year. . . . There is one forcible rape every 56 
               minutes in California.  In view of these realities, 
               the Commission supports the following agenda.  (  CCSW,  
                Public Policy Agenda and Legislative Proposals for the 
               2009-2010 Session  , available at 
               http://women.ca.gov/images/pdf/issues/1073.2009.2010pub
               licpolicyagenda.pdf.)

          This bill seeks to close this gap in the law by requiring that 
          the party protected by a civil protective order-including 
          family, civil harassment, workplace harassment, postsecondary 
          education harassment, juvenile, and elder and dependent adult 
          abuse protective orders-be notified prior to a hearing to modify 
          or terminate that order before its expiration date.  If the 
          protected party cannot be notified prior to the hearing, this 
          bill seeks to create a requirement that the motion to modify or 
          terminate the order be denied, or continue the hearing until the 
          protected party can be properly notified.








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          This measure seeks to extend to the protected party and victim 
          of violence or the threat of violence the same guarantee of 
          notice and opportunity to be heard that is currently granted to 
          the restrained party.  This measure additionally seeks to 
          provide the parties and courts some flexibility in the 
          application of the notice requirement by allowing a protected 
          party to waive his or her right to notice of a hearing if he or 
          she is physically present in court and requests the court to 
          take action on the termination or modification request. 

          While providing the flexibility necessary for the courts to 
          adapt to individual circumstances, this measure seeks to ensure 
          that a modification or termination of a civil protective order 
          will only be done with the full knowledge of the protected 
          party.  

          In strong support of the measure CCBA wrote to the Assembly 
          Judiciary Committee stating that, "AB 454 would increase the 
          protection provided . . . by requiring that the protected party 
          be given prior notice of any hearing to modify or terminate the 
          order."  CCBA goes on to comment that, "the proposed amendments 
          would further strengthen the law by expanding its application to 
          all civil restraining orders, and by providing an exception to 
          the notice requirement if the protected party is the petitioner 
          or is physically present at the hearing."  CCBA concludes by 
          noting that, "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."

           
          Analysis Prepared by  :    Drew Liebert / JUD. / (916) 319-2334 


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