BILL ANALYSIS Ó
AB 494
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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