BILL ANALYSIS Ó
AB 1081
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Date of Hearing: May 5, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1081
(Quirk) - As Introduced February 27, 2015
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: TEMPORARY Protective orders: CONTINUANCES
KEY ISSUE: in order to PREVENT LAPSE OF a temporary restraining
order DURING A CONTINUANCE AND to ENSURE VICTIMS REMAIN
PROTECTED, should a TEMPORARY RESTRAINING ORDER AUTOMATICALLY
REMAIN IN EFFECT UNTIL THE CONTINUED HEARING?
SYNOPSIS
When a victim of abuse obtains a temporary restraining order
(TRO), the TRO is intended to provide immediate protection, and
generally lasts for 21 days, or at least until the court
schedules the noticed hearing to consider extending the order.
If the victim seeking the protective order needs a continuance,
the victim must additionally motion to extend the TRO until the
date of the continued hearing; otherwise, the TRO expires before
the new hearing date, leaving the protected party vulnerable.
Conversely, under Rules of Court, if the restrained party moves
for and is granted a continuance, the TRO is automatically
extended until the date of the continued hearing.
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This bill protects victims by fixing the discrepancies in the
law, and authorizes a court, upon a showing of good cause, to
issue a continuance to either party. More importantly, upon a
continuance, AB 1081 automatically extends a temporary
restraining order until at least the end of the continued
hearing to ensure that protections afforded to victims of
domestic violence, civil harassment, workplace violence, elder
or dependent adult abuse, juvenile abuse, or postsecondary
education violence do not disappear during a continuance. This
bill also extends an expiring TRO until the end of the continued
hearing in matters involving the dissolution of marriage, the
determination of child support, and the establishment of a
parent and child relationship. This bill is sponsored by the
Judicial Council, and supported by the California Judges
Association and the Family Law Section of the State Bar. There
is no known opposition.
SUMMARY: Extends a specified temporary restraining order until
the end of a continued hearing if a party with good cause
obtains a continuance. Specifically, this bill:
1)Allows a court, upon a showing of good cause, to grant a
continuance in a hearing involving the issuance of restraining
orders to prevent civil harassment, workplace violence,
private postsecondary education violence, elder or dependent
adult abuse, juvenile abuse or domestic violence, as well as
other restraining orders under the Family Code.
2)Allows a court, on its own motion, to continue a hearing
involving the issuance of the restraining orders set forth in
# 1), above.
3)Provides that if a court continues a hearing pursuant to #s 1)
or 2), above, any temporary restraining order that has been
granted shall remain in effect until the end of the continued
hearing, unless otherwise ordered by the court. Allows the
court to modify or terminate the temporary restraining order.
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4)Clarifies that a respondent in a civil harassment proceeding
be notified that if the respondent fails to appear, a court
may issue a protective order lasting no more than five years,
subject to termination or modification by further order of the
court.
EXISTING LAW:
1)Provides that a court may issue a temporary restraining order
for civil harassment, as specified. (Code of Civil Procedure
Section 527.6(d).)
2)Provides that a court may issue a temporary restraining order
for workplace violence, as specified. (Code of Civil
Procedure Section 527.8(e).)
3)Provides that a court may issue a temporary restraining order
for postsecondary education violence, as specified. (Code of
Civil Procedure Section 527.85(e).)
4)Provides that a court may issue a temporary restraining order
for elder or dependent adult abuse, as specified. (Welfare
and Institutions Code Section 15657.03(c).)
5)Provides that a court may issue a temporary restraining order
for domestic violence prevention, as specified. (Family Code
Sections 241, 6220, 6300 et seq.)
6)Provides that a court may issue a temporary restraining order
for juvenile abuse, as specified. (Welfare and Institutions
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Code Section 213.5(e).)
7)Provides that a court may grant a temporary restraining order
in a dissolution or legal separation proceeding, or in a child
support proceeding, as specified. (Family Code Sections 240,
2045, 4620.)
8)Provides that in a proceeding to establish a parent and child
relationship, a court may grant a temporary restraining order
to prevent a party from removing a child from the state, as
specified. (Family Code Sections 240, 7700 et seq.)
9)Provides that a request for a temporary restraining order
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. (Code of Civil
Procedure Sections 527.6(e), 527.8(f), 527.85(f); Welfare and
Institutions Code Section 15657.03(e); and Family Code Section
246.)
10) Provides that an issued temporary restraining order for
civil harassment, workplace violence, or postsecondary
education violence 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, not to exceed 25 days,
unless otherwise modified or terminated by the court. (Code
of Civil Procedure Sections 527.6(g), 527.8(g); and
527.85(g).)
11) Provides that within 21 days, or if good cause appears to
the court, 25 days, from the date that a request for a
temporary restraining order for elder or dependent adult
abuse, or domestic violence is granted or denied, a hearing
shall be held on the petition. (Welfare and Institutions Code
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Sections 213.5, 15657.03(f); and Family Code Section 242.)
12)Provides that after a petition has been filed, the respondent
shall be personally served with a copy of the petition,
temporary restraining order, if any, and notice of hearing of
the petition. The court may, for good cause, either on a
motion of the petitioner or on its own motion, shorten the
time for service on the respondent. (Code of Civil Procedure
Sections 527.6(m), 527.8(m), 527.85(m); Welfare and
Institutions Code Section 15657.03(k); and Family Code Section
243.)
13)Provides that a 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. If reissued, the order shall remain in
effect until the date set for the hearing. (Code of Civil
Procedure Sections 527.6(o); 527.8(o), 527.85(o); Welfare and
Institutions Code Sections 213.5(c), 15657.03; and Family Code
Section 245.)
14) Provides that in a protective order to prevent civil
harassment, workplace violence, private postsecondary
education violence, or elder or dependent adult abuse, the
respondent may request continuance of the hearing upon a
showing of good cause. Further provides that if the court in
its discretion grants the continuance, any temporary
restraining order that has been granted remains in effect
until the end of the continued hearing unless otherwise
ordered by the court. (Rules of Court, Rule 3.1152.)
15) Provides that a court may issue a civil harassment
protective order (after notice and hearing) with a duration of
not more than five years, subject to termination or
modification by further order of the court. (Code of Civil
Procedure Section 527.6(j)(1).)
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16) Provides that in a civil harassment protective order
proceeding, a respondent shall be notified in the notice of
hearing 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. (Code of Civil Procedure Section 527.6(n).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This bill, sponsored by Judicial Council of
California, seeks to eliminate the differences between the
statutes and the Rules of Court and better protect victims of
abuse by automatically extending a TRO in the event of a
continuance, whether requested by the petitioner or the
respondent. In support of the bill, the author states:
Temporary restraining orders are not automatically extended
when hearings are continued, which can provide a serious
gap in protection if the plaintiff doesn't know they need
to request an extension. Also, these hearings can
currently only be continued for one reason - if the
responding party was not served with notice of the hearing.
The law does not take into account other possible reasons
why a hearing might need to be extended such as:
unavailability of a translator, the court calendar running
long, or the attorney representative requiring more time to
review information.
AB 1081 changes the way temporary civil restraining orders
are extended. Under this bill, any party can request a
continuance of the hearing upon showing of good cause. By
automatically extending temporary restraining orders until
the continued hearing date, AB 1081 prevents a gap in
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protection and bill allows temporary restraining orders to
serve their purpose: protecting parties until a hearing
takes place.
The Judicial Council adds that AB 1081 "benefits the public and
the courts by providing simpler, improved means for requesting,
and ruling on request for, continuances in sensitive proceedings
involving significant numbers of self-represented litigants."
(Report to the Judicial Council: Amend Civil Restraining Order
Statutes to Clarify Procedures for Continuance of Hearings,
Judicial Council of California, April 25, 2014.)
Protective Orders. The purpose of a protective order is to
prevent future harm to the petitioner (the protected party) by
ordering the respondent (the restrained party) to refrain from
doing a particular act. Depending on the type of order applied
for, a protective order may last days, weeks, years, or even
permanently.
In order to get immediate protection, a petitioner may seek a
temporary restraining order (TRO). The TRO becomes effective
upon receiving a judge's signature and being served on the
respondent. TROs may be granted ex parte, without formal notice
to, or presence of, the respondent and are issued or denied on
the date of application, unless the application is filed too
late to permit effective review. TROs generally expire after 21
days, or expire after the noticed motion to extend the order.
If a petitioner seeks a preliminary injunction, the injunction
may only be granted after the respondent has been formally
noticed of the court hearing. In the instance that a petitioner
has already obtained a TRO and seeks a preliminary injunction to
extend the order, the respondent must still be properly noticed
by the petitioner and be given the opportunity to participate at
the court hearing.
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Current Inconsistencies Between Statutes and Rules of Court Can
Allow a Protected Party's Temporary Restraining Order to Expire
When There is a Continuance. Parties in a legal matter may seek
to continue (i.e., postpone) a court hearing to a later date if
they are not prepared or not available at the date set for the
hearing. However, current rules for continuances differ
depending on who asks for the continuance - whether the
petitioner or the respondent.
For the respondent in a protective order matter, a hearing will
be continued if the respondent demonstrates good cause. In this
instance, under California Rules of Court, any TRO granted will
automatically be extended until the end of the continued
hearing, unless the court orders otherwise.
However, in stark contrast, the petitioner in that same matter
may only continue a hearing if the petitioner was unable to
properly serve the respondent, not for another reason.
Furthermore, if a continuance is granted for the petitioner, the
petitioner must affirmatively motion the court to extend the
temporary restraining order to the date and time of the end of
the continued hearing. If the petitioner does not get the TRO
extended during the continuance, the TRO expires. (See Code of
Civil Procedure Sections 527.6(o); 527.8(o), 527.85(o); Welfare
and Institutions Code Section 213.5(c), 15657.03; and Family
Code Section 245.) Given that many, if not the vast majority,
of petitioners are self-represented and may be unaware of the
need to make this motion to extend the TRO, there is often a gap
in the protection afforded to a petitioner between the original
end date of the TRO and the continued hearing.
This Bill Simplifies and Streamlines the Procedure to Get a
Continuance in Hearing for a Protective Order For Various
Matters and to Continue the Protective Order. This bill
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resolves the problems that are caused by continuances when a TRO
has been issued. First, this bill allows a continuance to be
granted for either party for good cause shown. As the author
has correctly identified, the need for a continuance is not
limited to inability of service, which is what the current law
provides for petitioners. (See Taylor v. Bell (1971) 21
Cal.App.3d 1002, 1007 ("The factors which influence the granting
or denying of a continuance in any particular case are so varied
that the trial judge must necessarily exercise a broad
discretion").) For example, a continuance may be needed if a
translator is unavailable, a court calendar is running long, or
a party requires additional time to prepare for the matter.
This bill also allows a court to grant a continuance on its own
motion. This ensures that a court can protect the parties, even
if neither party is able to request a continuance.
Second, and most importantly, this bill automatically extends
the TRO until the continued hearing, unless the court determines
otherwise. This important change ensures that the petitioner
will not lose his or her protective order for what could be a
critical period of time. Thus, even if an unrepresented
protected party does not specifically ask for the extension of
the order (likely because he or she does not realize that is
required), the order will continue unless the court rules
otherwise. This bill provides the court with sufficient
discretion to protect the parties, but also to do what is
appropriate in each particular case.
The Proposed Amendments Extend the Procedures to Domestic
Violence and Juvenile Protective Orders, and Family Law Matters.
As proposed to be amended, this bill expands its safeguards to
domestic violence and juvenile abuse protective orders. This
ensures the important protections in the bill apply to adult and
minor victims of domestic violence.
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Additionally, this bill extends an expiring TRO until the end of
the continued hearing in family law matters generally,
specifically in a proceeding involving a dissolution of
marriage, determination of child support, and establishment of a
parent and child relationship. Extending the bill's provisions
to the Family Code will allow for consistent procedures, and
further safeguard parties that rely on TROs to protect
themselves and their loved ones.
Automatic Extension of a TRO Could Lead to Hardship for the
Respondent. As discussed above, this bill provides an automatic
extension of a TRO when the either party, for good cause,
requests a continuance, unless the court decides otherwise. An
extension granted to a protected party may cause significant
hardship to a respondent who might, for example, be prevented
from seeing his or her children by the TRO. The respondent then
may have to wait even longer for the noticed hearing so that he
or she can present his or her case to the court. However, since
the bill does require that the party requesting the continuance
have good cause, and since the court can decide, in its
discretion, to terminate or modify the TRO even when continuing
the hearing, it is hoped that continuances would not be granted
without good cause and that courts would make appropriate
decisions so that not only are parties protected from abuse, but
also that cases are not allowed to drag on, particularly when
respondents have not had their day in court.
This Bill Also Corrects Existing Law Regarding the Duration of a
Civil Harassment Protective Order Where a Respondent Has Failed
to Appear. In 2013, the Legislature enacted AB 499 (Ting),
Chap. 158, Stats. 2013, which increased the length of time that
a court could issue a civil harassment protective order from
three years to five years. A petitioner is required to provide
a respondent with notice of the potential duration of a civil
harassment protective order, but that notice was not updated to
reflect the 2013 change from three to five years. This bill
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makes that technical and clarifying change.
ARGUMENTS IN SUPPORT: In support of the bill, the California
Judges Association states: "By altering the way continuances
are granted in restraining order cases, AB 1081 is expected to
improve court efficiency and prevent the possibility of a gap in
the protection afforded by temporary restraining orders."
REGISTERED SUPPORT / OPPOSITION:
Support
Judicial Council (sponsor)
California Judges Association
Family Law Section of the State Bar
Opposition
None on file
Analysis Prepared by:Leora Gershenzon and Eric Dang / JUD. /
(916) 319-2334
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