California Legislature—2013–14 Regular Session

Assembly Bill No. 499

Introduced by Assembly Member Ting

February 20, 2013

An act to amend Section 527.6 of the Code of Civil Procedure, relating to judicial proceedings.

LEGISLATIVE COUNSEL’S DIGEST

AB 499, as introduced, Ting. Judicial proceedings: injunctions prohibiting harassment.

Existing law provides that a person who has suffered harassment, as defined, may seek a temporary restraining order and an injunction prohibiting harassment. If issued, the injunction shall be in effect for a period of up to 3 years and may be renewed for another period of up to 3 years. If the form does not establish an expiration date for the injunction, existing law establishes a default duration of 3 years.

This bill would provide that the injunction shall remain in effect, subject to termination or modification by further order of the court, for up to 10 years and would repeal the order renewal provisions. The bill would establish a default order period of five years if no expiration date is provided on the form.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 527.6 of the Code of Civil Procedure is
amended to read:

527.6.  

(a) (1) A person who has suffered harassment as
defined in subdivision (b) may seek a temporary restraining order
and an injunction prohibiting harassment as provided in this
section.

(2) A minor, under 12 years of age, accompanied by a duly
appointed and acting guardian ad litem, shall be permitted to appear
in court without counsel for the limited purpose of requesting or
opposing a request for a temporary restraining order or injunction,
or both, under this section as provided in Section 374.

(b) For the purposes of this section:

(1) “Course of conduct” is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual,
making harassing telephone calls to an individual, or sending
harassing correspondence to an individual by any means, including,
but not limited to, the use of public or private mails, interoffice
mail, facsimile, or computer email. Constitutionally protected
activity is not included within the meaning of “course of conduct.”

(2) “Credible threat of violence” is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.

(3) “Harassment” is unlawful violence, a credible threat of
violence, or a knowing and willful course of conduct directed at
a specific person that seriously alarms, annoys, or harasses the
person, and that serves no legitimate purpose. The course of
conduct must be such as would cause a reasonable person to suffer
substantial emotional distress, and must actually cause substantial
emotional distress to the petitioner.

(4) “Petitioner” means the person to be protected by the
temporary restraining order and injunction and, if the court grants
the petition, the protected person.

(5) “Respondent” means the person against whom the temporary
restraining order and injunction are sought and, if the petition is
granted, the restrained person.

(6) “Temporary restraining order” and “injunction” mean 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 Section
653m of the Penal Code, 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
subparagraph (A).

(7) “Unlawful violence” is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.

(c) In the discretion of the court, on a showing of good cause,
a temporary restraining order or injunction issued under this section
may include other named family or household members.

(d) Upon filing a petition for an injunction under this section,
the petitioner may obtain a temporary restraining order in
accordance with Section 527, except to the extent this section
provides a rule that is inconsistent. The temporary restraining order
may include any of the restraining orders described in paragraph
(6) of subdivision (b). A temporary restraining order may be issued
with or without notice, based on a declaration that, to the
satisfaction of the court, shows reasonable proof of harassment of
the petitioner by the respondent, and that great or irreparable harm
would result to the petitioner.

(e) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that day
with the clerk of the court.

(f) A temporary restraining order issued under this section shall
remain in effect, at the court’s discretion, for a period not to exceed
21 days, or, if the court extends the time for hearing under
subdivision (g), not to exceed 25 days, unless otherwise modified
or terminated by the court.

(g) Within 21 days, or, if good cause appears to the court, 25
days from the date that a petition for a temporary order is granted
or denied, a hearing shall be held on the petition for the injunction.
If no request for temporary orders is made, the hearing shall be
held within 21 days, or, if good cause appears to the court, 25 days,
from the date that the petition is filed.

(h) The respondent may file a response that explains, excuses,
justifies, or denies the alleged harassment or may file a
cross-petition under this section.

(i) At the hearing, the judge shall receive any testimony that is
relevant, and may make an independent inquiry. If the judge finds
by clear and convincing evidence that unlawful harassment exists,
an injunction shall issue prohibiting the harassment.

(j) (1) In the discretion of the court, an order issued after notice
and hearing under this section may have a duration of begin delete not more
than three end delete begin insert up to ten end insert years, subject to termination or modification
by further order of the court either on written stipulation filed with
the court or on the motion of a party. begin delete These orders may be renewed,
upon the request of a party, for a duration of not more than three
years, without a showing of any further harassment since the
issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. The
request for renewal may be brought at any time within the three
months before the expiration of the order. end delete

(2) The failure to state the expiration date on the face of the
form creates an order with a duration of begin delete three end delete begin insert five end insert years from the
date of issuance.

(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party
who is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005, of the proceeding by personal
service or, if the protected party has satisfied the requirements of
Chapter 3.1 (commencing with Section 6205) of Division 7 of
Title 1 of the Government Code, by service on the Secretary of
State. If the party who is protected by the order cannot be notified
prior to the hearing for modification or termination of the protective
order, the court shall deny the motion to modify or terminate the
order without prejudice or continue the hearing until the party who
is protected can be properly noticed and may, upon a showing of
good cause, specify another method for service of process that is
reasonably designed to afford actual notice to the protected party.
The 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.

(k) This section does not preclude either party from
representation by private counsel or from appearing on the party’s
own behalf.

(l) In a proceeding under this section if there are allegations of
unlawful violence or credible threats of violence, a support person
may accompany a party in court and, if the party is not represented
by an attorney, may sit with the party at the table that is generally
reserved for the party and the party’s attorney. The support person
is present to provide moral and emotional support for a person
who alleges he or she is a victim of violence. The support person
is not present as a legal adviser and may not provide legal advice.
The support person may assist the person who alleges he or she is
a victim of violence in feeling more confident that he or she will
not be injured or threatened by the other party during the
proceedings if the person who alleges he or she is a victim of
violence and the other party are required to be present in close
proximity. This subdivision does not preclude the court from
exercising its discretion to remove the support person from the
courtroom if the court believes the support person is prompting,
swaying, or influencing the party assisted by the support person.

(m) Upon the filing of a petition for an injunction under this
section, the respondent shall be personally served with a copy of
the petition, temporary restraining order, if any, and notice of
hearing of the petition. Service shall be made at least five days
before the hearing. The court may for good cause, on motion of
the petitioner or on its own motion, shorten the time for service
on the respondent.

(n) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to three
years.

(o) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.

(2) The reissued order shall state on its face the date of
expiration of the order.

(p) (1) If a respondent, named in a restraining order issued after
a hearing, has not been served personally with the order but has
received actual notice of the existence and substance of the order
through personal appearance in court to hear the terms of the order
from the court, no additional proof of service is required for
enforcement of the order.

(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions
of the restraining order or protective order issued at the hearing
are identical to the temporary restraining order, except for the
duration of the order, then the restraining order or protective order
issued at the hearing may be served on the respondent by first-class
mail sent to the respondent at the most current address for the
respondent available to the court.

(3) The Judicial Council form for temporary orders issued
pursuant to this subdivision shall contain a statement in
substantially the following form:

“If you have been personally served with this temporary
restraining order and notice of hearing, but you do not appear at
the hearing either in person or by a lawyer, and a restraining order
that is the same as this temporary restraining order except for the
expiration date is issued at the hearing, a copy of the restraining
order will be served on you by mail at the following address: ____.

If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order
at the hearing without substantive change and to find out the
duration of that order, contact the clerk of the court.”

(q) (1) Information on any temporary restraining order or
injunction relating to civil harassment issued by a court pursuant
to this section shall be transmitted to the Department of Justice in
accordance with either paragraph (2) or (3).

(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or reissuance, extension, modification, or termination of the order,
and any subsequent proof of service, by the close of the business
day on which the order, reissuance, extension, modification, or
termination was made, to a law enforcement agency having
jurisdiction over the residence of the petitioner and to any
additional law enforcement agencies within the court’s discretion
as are requested by the petitioner.

(3) Alternatively, the court or its designee shall transmit, within
one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following
methods:

(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department
of Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).

(B) With the approval of the Department of Justice, entering
the order or proof of service into CLETS directly.

(4) Each appropriate law enforcement agency shall make
available information as to the existence and current status of these
orders to law enforcement officers responding to the scene of
reported harassment.

(5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported harassment involving
the parties to the proceeding. The petitioner shall provide the
officer with an endorsed copy of the order and a proof of service
that the officer shall complete and send to the issuing court.

(6) Upon receiving information at the scene of an incident of
harassment that a protective order has been issued under this
section, or that a person who has been taken into custody is the
subject of an order, if the protected person cannot produce a
certified copy of the order, a law enforcement officer shall
immediately attempt to verify the existence of the order.

(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and shall at that
time also enforce the order. Verbal notice of the terms of the order
shall constitute service of the order and is sufficient notice for the
purposes of this section and for the purposes of Section 29825 of
the Penal Code.

(r) The prevailing party in any action brought under this section
may be awarded court costs and attorney’s fees, if any.

(s) Any willful disobedience of any temporary restraining order
or injunction granted under this section is punishable pursuant to
Section 273.6 of the Penal Code.

(t) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm or ammunition while the protective
order is in effect.

(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9.

(3) Every person who owns, possesses, purchases, or receives,
or attempts to purchase or receive, a firearm or ammunition while
the protective order is in effect is punishable pursuant to Section
29825 of the Penal Code.

(u) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4
of Division 3 of the Civil Code or by Division 10 (commencing
with Section 6200) of the Family Code. This section does not
preclude a petitioner from using other existing civil remedies.

(v) (1) The Judicial Council shall develop forms, instructions,
and rules relating to matters governed by this section. The petition
and response forms shall be simple and concise, and their use by
parties in actions brought pursuant to this section shall be
mandatory.

(2) A temporary restraining order or injunction relating to civil
harassment issued by a court pursuant to this section shall be issued
on forms adopted by the Judicial Council of California and that
have been approved by the Department of Justice pursuant to
subdivision (i) of Section 6380 of the Family Code. However, the
fact that an order issued by a court pursuant to this section was not
issued on forms adopted by the Judicial Council and approved by
the Department of Justice shall not, in and of itself, make the order
unenforceable.

(w) There is no filing fee for a petition that alleges that a person
has inflicted or threatened violence against the petitioner, or stalked
the petitioner, or acted or spoken in any other manner that has
placed the petitioner in reasonable fear of violence, and that seeks
a protective or restraining order or injunction restraining stalking
or future violence or threats of violence, in any action brought
pursuant to this section. No fee shall be paid for a subpoena filed
in connection with a petition alleging these acts. No fee shall be
paid for filing a response to a petition alleging these acts.

(x) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the
service of process by a sheriff or marshal of a protective order,
restraining order, or injunction to be issued, if either of the
following conditions applies:

(A) The protective order, restraining order, or injunction issued
pursuant to this section is based upon stalking, as prohibited by
Section 646.9 of the Penal Code.

(B) The protective order, restraining order, or injunction issued
pursuant to this section is based upon unlawful violence or a
credible threat of violence.

(2) The Judicial Council shall prepare and develop forms for
persons who wish to avail themselves of the services described in
this subdivision.