BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  April 7, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 494  
          (Maienschein) - As Introduced February 23, 2015


                              As Proposed to be Amended


          SUBJECT:  RESTRAINING ORDERS: PROTECTION OF ANIMALS


          KEY ISSUE:  SHOULD EXISTING LAW ENABLING COMPANION ANIMALS TO BE  
          PROTECTED BY DOMESTIC VIOLENCE RESTRAINING ORDERS BE EXTENDED TO  
          ENSURE THAT ANIMALS BELONGING TO PARTIES PROTECTED BY  
          RESTRAINING ORDERS IN CIVIL HARASSMENT CASES, JUVENILE WARD AND  
          DEPENDENCY CASES, AND ELDER ABUSE CASES ARE SIMILARLY PROTECTED?


                                      SYNOPSIS


          In 2007, the Legislature enacted AB 353 (Kuehl) Ch. 205, Stats.  
          2007, to authorize protection for companion animals belonging to  
          persons who are protected by domestic violence restraining  
          orders.  Specifically, AB 353 authorized a court, upon a showing  
          of good cause, to include the following in a domestic violence  
          prevention order: (1) an order to grant the petitioner exclusive  
          care or possession of the companion animal, and (2) an order  
          requiring the respondent to stay away from the animal and  
          refrain from taking or harming the animal.  The new law did not,  
          however, enable the animal protection provisions to be applied  








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          in other types of proceedings for obtaining a temporary  
          restraining order (TRO).  Accordingly, this bill, sponsored by  
          the Family Law Section of the State Bar, seeks to extend the  
          protections established by AB 353 so they apply to restraining  
          orders sought in civil harassment cases, juvenile ward and  
          dependency cases, and elder abuse cases.  In order to maintain  
          consistency with existing law enacted by AB 353, proposed  
          amendments to the bill clarify that (1) a showing of good cause  
          is necessary for the court to include protections for an animal  
          in a TRO, and (2) animal protections are available only when  
          included in an underlying restraining order, and not as a  
          stand-alone order.  In addition, proposed amendments correct a  
          drafting oversight and authorize these protections to be  
          included in TROs in juvenile dependency cases, in addition to  
          juvenile ward cases.  The bill is supported by the California  
          Partnership to End Domestic Violence and animal advocates, who  
          contend that the bill is needed to enable all persons to exit a  
          violent or abusive situation without fear that their companion  
          animals will be harmed or taken from them as a result.  There is  
          no known opposition to this bill.


          SUMMARY:  Enables courts to include protections for companion  
          animals in restraining orders sought by persons who fear for the  
          safety of themselves and their animals and apply for civil  
          harassment and other types of protective orders.  Specifically,  
          with respect to restraining orders in certain civil harassment  
          cases, juvenile dependency cases, and elder abuse cases, this  
          bill allows a court, upon a showing of good cause, to include in  
          the restraining order one or both of the following:


          1)An order for exclusive care, possession, or control of any  
            animal owned, possessed, leased, kept, or held by the  
            petitioner, or residing in the residence or household of the  
            person protected by the restraining order.


          2)An order to the respondent or person being restrained to stay  








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            away from the animal and refrain from taking, transferring,  
            encumbering, concealing, molesting, attacking, striking,  
            threatening, harming, or otherwise disposing of the animal.


          EXISTING LAW:   


          1)Authorizes a court to issue an ex parte order (hereafter  
            "domestic violence prevention order") enjoining a party from  
            molesting, attacking, striking, stalking, threatening,  
            sexually assaulting, battering, credibly impersonating,  
            harassing, telephoning, making annoying telephone calls,  
            destroying personal property, contacting by mail, coming  
            within a specified distance of, or disturbing the peace of the  
            other party.  Further allows the court, upon a showing of good  
            cause, to extend the order to enjoin a party from disturbing  
            the peace of other named family or household members. (Family  
            Code Section 6320(a).)


          2)Authorizes a court, upon a showing of good cause, to include  
            in a domestic violence prevention order, a grant to the  
            petitioner of the exclusive care, possession, or control of  
            any animal owned, possessed, leased, kept, or held by either  
            the petitioner, respondent, household, or minor child in the  
            residence.  Further allows the court to order the respondent  
            to stay away from the animal and forbid the respondent from  
            taking, transferring, encumbering, concealing, molesting,  
            attacking, striking, threatening, harming, or otherwise  
            disposing of the animal.  (Family Code Section 6320(b).)


          3)Permits a person who has suffered civil harassment to seek a  
            temporary restraining order or an injunction prohibiting the  
            civil harassment.  (Code of Civil Procedure Section 527.6  
            (a).)










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          4)Defines "harassment" as 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 serves no legitimate purpose.  The  
            course of conduct must be such that it would cause a  
            reasonable person to suffer substantial emotional distress,  
            and must actually cause substantial emotional distress to the  
            petitioner.  (Code of Civil Procedure Section 527.6 (b)(3).)
          5)Defines "temporary restraining order" and "injunction" to mean  
            orders that include any restraining 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, 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; or any order  
            enjoining a party from specified behavior that is necessary to  
            effectuate such restraint.  (Code of Civil Procedure Section  
            527.6 (b)(6).)


          6)Allows 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.  (Welfare & Institutions Code Section  
            213.5.)


          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.   
            (Welfare & Institutions Code Section 15657.03.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  In 2007, the Legislature enacted legislation  
          authorizing courts to include protections for companion animals  








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          of persons who are protected by domestic violence restraining  
          orders (AB 353 (Kuehl) Ch. 205, Stats. 2007.).  AB 353 amended  
          the Domestic Violence Prevention Act, to specifically authorize  
          the court, upon a showing of good cause, to include in a  
          domestic violence prevention order an order to grant the  
          petitioner exclusive care or possession of the companion animal  
          and to order the respondent to stay away from the companion  
          animal and refrain from taking or harming the animal.  The new  
          law did not, however, enable the animal protection provisions to  
          be applied in other types of restraining orders.  


          Need For The Bill.  This bill, sponsored by the Family Law  
          Section of the State Bar (Flexcom), seeks to extend the  
          protections established by AB 353 to restraining orders that may  
          be sought in civil harassment cases, juvenile dependency cases,  
          and elder abuse cases.  According to the National Council of  
          Juvenile and Family Court Judges, "The threat, or actual use, of  
          violence against family pets is part of the dynamic of family  
          violence-a dynamic that includes not only the spouse and the  
          batterer, but also the children, elderly relatives, and the  
          family pet(s).  Animals are often used by the abuser to punish  
          or manipulate, as well as to take revenge against, the victim."   
           (Ramsey, Randour, and Gupta, "Protecting Domestic Violence  
          Victims by Protecting Their Pets." Juvenile and Family Justice  
          Today, National Council of Juvenile and Family Court Judges,  
          Vol. 19, p. 2 (Spring 2010).)  Multiple studies have found that  
          as many as 71% of battered women reported that their pets had  
          been threatened, harmed, or killed by their partners.  (see,  
          e.g. Ascione, Weber, and Wood, "The Abuse Of Animals And  
          Domestic Violence: A National Survey Of Shelters For Women Who  
          Are Battered." Society and Animals, Vol. 5(3), 1997.)  


          In support of the bill, the author states:


               As animal abuse is often correlated with family  
               violence, many people who abuse their family members  








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               and intimate partners also threaten, injure or kill  
               their victims' pets, as an effective way to intensify  
               the effects of their abusive behavior. AB 494 seeks to  
               bring other sections of state law up to par with the  
               Domestic Violence Prevention Act by allowing judicial  
               officers in all types of restraining orders to protect  
               companion animals. AB 494 will help abused elders,  
               abused children and stalking victims to ensure the  
               safety and the wellbeing of their pets after a  
               restraining order has been granted.


          Background On Protective Orders And The Effect Of Including  
          Animals Within Those Orders.  Depending on the type of order  
          applied for, domestic violence protective orders may last days,  
          weeks, years, or even permanently.  Emergency protective orders,  
          issued by a judicial officer upon specific assertions by a law  
          enforcement officer, expire on the earliest of the fifth court  
          day, or seventh calendar day following issuance.  In contrast,  
          requests for temporary restraining orders (TROs) are filed with  
          the court and become effective upon receiving a judge's  
          signature and being served on the batterer.  TROs may be granted  
          ex parte, without formal notice to, or presence of, the batterer  
          and are issued or denied on the date of application, unless the  
          application is filed too late to permit effective review.  TROs  
          are generally effective for 21 days or until a hearing on the  
          matter.  After proper notice and hearing, a restraining order  
          may be granted for up to five years, subject to future  
          modification.  At that hearing, the petitioner must make a  
          showing of past acts of abuse and the likelihood of continuing  
          abusive conduct on the respondent's part.  Upon request, that  
          order may be renewed for another five years, or permanently.  


          Proposed Amendments To Clarify Application Of Good Cause  
          Standard.  As proposed to be amended, the bill clarifies that a  
          showing of good cause is necessary for the court to include  
          protections for an animal in an ex parte restraining order  
          covered by this bill.  Ex parte orders, such as civil harassment  








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          protection orders, are temporary orders pending a formal hearing  
          and generally only are ordered if quick action, often without  
          notice to the other party, is required.  Because ex parte orders  
          are generally granted at the request of one party, without the  
          other parties to the action present, and are an exception to the  
          basic rule of court procedure that both parties must be present  
          at any argument before the court, there are often due process  
          concerns about the rights of the party not present.  In order to  
          mitigate these concerns, the author proposes to amend the bill  
          to clarify that, for each type of ex parte order covered by the  
          bill, a petitioner cannot gain custody of the animal or compel  
          the respondent to stay away from the animal without a showing of  
          good cause.  The proposed amendments align the bill with  
          existing law, Family Code section 6320, which already requires  
          good cause to be shown before the court may incorporate animal  
          protection measures into a domestic violence restraining order.


          In short, the court must find good cause before issuing an ex  
          parte TRO that includes protections for the animal.  At the  
          subsequent noticed motion and hearing, held within 21 days, the  
          respondent would still have the opportunity to dispute the  
          initial ex parte order for exclusive care, possession, or  
          control of the animal, or an order to stay away.


          Proposed Amendment Clarifying That Animal Protections Are  
          Available Only When Included In An Underlying Restraining Order.  
           With respect to domestic violence restraining orders under  
          section 6320 of the Family Code, the court "may include in a  
          protective order" a grant of possession or control of an animal,  
          or an order to the respondent to stay away from the animal or  
          refrain from harming it.  Proponents agree that this existing  
          section of law does not allow the petitioner to seek a  
          stand-alone order protecting only the companion animal, but only  
          allows a court to include protections for the animal in the  
          underlying protective order already at issue.










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          As proposed to be amended, the bill clarifies that it is  
          similarly intended to authorize protections for animals to be  
          included in underlying restraining orders, specifically those  
          issued in cases involving civil harassment, juvenile wards and  
          dependents, or elder abuse.  According to the author, the  
          proposed amendments clarify that the bill is not intended to  
          allow a stand-alone order for custody of an animal or to stay  
          away from the animal, unless there is an underlying restraining  
          order protecting the petitioner or other protected party.


          Specific Provisions To Protect Animals May Ease The Process For  
          Self-Represented Parties.  Because American and California  
          jurisprudence generally views animals as personal property, it  
          is arguable that existing law already allows a petitioner to  
          seek protections for an animal when petitioning for a civil  
          harassment protective order.  (See Scharer v. San Luis Rey  
          Equine Hosp., Inc., (2012) 204 Cal.App.4th 421, 427 ("animals  
          are a form of personal property under California law.")  In a  
          civil harassment dispute, for example, a court may issue an  
          order "enjoining a party from harassing, intimidating, or ?  
          destroying personal property" (Code of Civil Procedure Section  
          527.6(b)(6)(A)) that arguably could be wielded by a  
          sophisticated party to protect an animal.  The Committee notes  
          that by specifically allowing courts to include protection for  
          animals in the underlying restraining order, this bill could  
          have the benefit of easing the process for self-represented  
          parties.  The Judicial Council forms used by self-represented  
          parties to seek various restraining orders could easily be  
          updated to include a check box or blank space where the party  
          could easily indicate his or her intent to seek protection for  
          an animal as provided by this bill should it become law.


          The Bill's Protections Are Not Necessarily Limited Only To  
          Traditional Companion Animals.  Similar to AB 353, the term  
          "animal" is not specifically defined.  Accordingly, "animal"  
          would encompass virtually any possible animal belonging to the  
          petitioner or respondent that may be threatened by the abuse.   








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          In defining "animal," American Jurisprudence, Second Edition,  
          states generally "in the language of the law, the word 'animal'  
          is used to mean all animal life other than humans."  Thus, the  
          term "animal" not only covers domestic dogs or cats, but  
          potentially would encompass even a dairy cow or prized  
          racehorse.  From a public policy standpoint, this broad  
          definition appropriate covers the wide range of animals that may  
          be exploited by an abuser to try to control his or her victims.   
          While the definition could also include a valuable leased  
          animal, such as a show dog or racehorse, the requirement of  
          court approval upon a showing of good cause provides as a layer  
          of protection to prevent the use of the provisions to gain  
          control over valuable animals absent sufficient justification.


          Many Other States Specifically Authorize Protections Of Animals  
          To Be Included In Temporary Restraining Orders.  According to  
          the Humane Society of the United States, this bill would cause  
          California to join over two dozen other states that have  
          expanded their laws to allow animals to be included in some type  
          of protective order.  These states include Arizona, Colorado,  
          Connecticut, District of Columbia, Hawaii, Illinois, Iowa,  
          Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nevada,  
          New Hampshire, New Jersey, New York, North Carolina, Oklahoma,  
          Oregon, South Carolina, Tennessee, Vermont, Virginia,  
          Washington, and West Virginia.


          ARGUMENTS IN SUPPORT:  The Humane Society of the United States  
          writes in support:


               This bill will extend protections to animals of these  
               parties in protective orders issued in juvenile  
               dependency cases, civil harassment cases, and elder  
               abuse cases.  These protections are important for the  
               same reasons as in Domestic Violence Prevention Act  
               cases.  In juvenile cases, for example, one state  
               study found that animal abuse occurred in 88% of  








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               families that were under state supervision for the  
               physical abuse of their children. Often, child victims  
               of abuse can be controlled by an abuser who may use a  
               beloved animal to manipulate a child.  Likewise, in  
               elder abuse cases, an abuser may neglect or abuse an  
               elder's beloved animal as a form of control or  
               retaliation, often out of frustration over their  
               caretaking responsibilities, or as a way to extract  
               financial assets.  In addition, any older adults are  
               particularly attached to their animals.  Accordingly,  
               these elder victims are vulnerable in these abusive  
               situations and need to be able to protect their  
               animals as part of a protection order.  In the same  
               way this type of law has helped domestic violence  
               victims and their animals, AB 494 will extend that  
               protection to all vulnerable victims and their  
               animals.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Executive Committee of the Family Law Section of the State Bar  
          (Flexcom) (sponsor)


          American Society for the Prevention of Cruelty to Animals  
          (ASPCA)


          California District Attorneys Association


          Humane Society of the United States








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          Opposition


          None on file




          Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334