BILL ANALYSIS Ó
AB 454
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 454 (Silva)
As Amended May 27, 2011
Majority vote
-----------------------------------------------------------------
|ASSEMBLY: |71-0 |(March 25, |SENATE: |37-0 |(June 27, |
| | |2011) | | |2011) |
-----------------------------------------------------------------
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
Page 2
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,
"Ýr]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
AB 454
Page 3
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.
AB 454
Page 4
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
FN: 0001382