BILL ANALYSIS                                                                                                                                                                                                    



                                                                       AB 494


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          494 (Maienschein)


          As Amended  August 17, 2015


          Majority vote


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          Original Committee Reference:  JUD.




          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.










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          2)An order to the respondent or person being restrained to stay  
            away from the animal and refrain from taking, transferring,  
            encumbering, concealing, molesting, attacking, striking,  
            threatening, harming, or otherwise disposing of the animal.


          The Senate amendments establish chaptering-out language to avoid  
          potential conflict with AB 1081 (Quirk) of the current legislative  
          session and SB 196 (Hancock) of the current legislative session.


          FISCAL EFFECT:  None


          COMMENTS:  In 2007, the Legislature enacted legislation  
          authorizing courts to include protections for companion animals of  
          persons who are protected by domestic violence restraining orders  
          (AB 353 (Kuehl), Chapter 205, Statutes of 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.  AB 353 did not, however,  
          enable the animal protection provisions to be applied in other  
          types of restraining orders.  


          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, Volume 19, part 2 (Spring 2010).)   








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          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, Volume 5(3),  
          1997.)  


          In support of this bill, the author states:


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








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          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.  


          Showing of Good Cause Required.  Recent amendments clarify 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  
          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, this bill provides that, for each type of  
          ex parte order covered by this 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.  This bill is  
          consistent 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.


          Animal Protections Are Available Only When Included in an  
          Underlying Restraining Order.  With respect to domestic violence  
          restraining orders under Family Code Section 6320, 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  








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          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.  According to the  
          author, this 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.  Accordingly, recent amendments clarify  
          that this bill authorizes protections for animals only when they  
          are included in an underlying restraining order, specifically  
          those issued in cases involving civil harassment, juvenile wards  
          and dependents, or elder abuse.  


          Specific Provisions to Protect Animals May Ease the Process for  
          Self-Represented Parties.  Because American and Californian  
          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 Assembly Judiciary 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.


          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.  In  
          defining "animal," American Jurisprudence, Second Edition, states  
          generally "in the language of the law, the word 'animal' is used  








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          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, the 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.


          Analysis Prepared by:                                               
          Anthony Lew / JUD. / (916) 319-2334  FN: 0001387