BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1081 (Quirk)
          Version: May 11, 2015
          Hearing Date:  June 23, 2015
          Fiscal: No
          Urgency: No
          NR   


                                        SUBJECT
                                           
                                  Protective orders

                                      DESCRIPTION  

          This bill would allow either party to request a continuance of a  
          hearing on a temporary restraining order (TRO), as specified,  
          which the court would be required to grant on a showing of good  
          cause, and additionally authorize the court to grant a  
          continuance on its own motion. This bill would, upon granting a  
          continuance, require that any TRO that had previously been  
          granted remain in effect until the conclusion of the continued  
          hearing, and would authorize the court to modify or terminate  
          that TRO.

                                      BACKGROUND  

          A restraining order, also called a "protective order," is a  
          court order that can protect someone from being physically or  
          sexually abused, threatened, stalked, or harassed. The person  
          seeking the restraining order is called the "protected person,"  
          and the party who is prohibited from engaging in certain  
          behaviors is the "restrained person." There are four basic types  
          of civil restraining orders: (1) domestic violence restraining  
          orders; (2) elder or dependent adult abuse restraining orders;  
          (3) civil harassment restraining orders; and (4) workplace  
          violence restraining orders.

          Generally, protective orders can include personal conduct  
          orders, which seek to restrain a person from specific behavior  
          including contacting, attacking, stalking, threatening, or  








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          harassing a protected party or destroying personal property of  
          the protected party.  Similarly, stay-away orders require the  
          restrained person to stay a certain distance away (e.g., 50 or  
          100 yards) from the protected person, including his or her home,  
          place of work, school, or vehicle.  Residence exclusion  
          ("kick-out" or "move-out") orders require a restrained person to  
          move out from where the protected person lives and to take only  
          clothing and personal belongings with them. 

          Petitioners who need immediate protection may seek a temporary  
          restraining order (TRO), which 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.  They are generally issued or denied on the  
          date of application, and expire after 21 days, or after a  
          noticed motion to extend the order.  After notice and hearing,  
          the protections of a TRO may be approved by the court as a  
          restraining order for up to five years, as specified.  

          This bill, sponsored by Judicial Council, seeks to promote  
          consistency among the different types of restraining orders and  
          ensure continued protection of victims who need to postpone a  
          hearing by allowing automatic continuances of protective order  
          hearings. 

                                CHANGES TO EXISTING LAW
           


           Existing law  provides that a court may issue a temporary  
          restraining order (TRO) for civil harassment, workplace  
          violence, postsecondary education violence, juvenile abuse,  
          elder or dependent adult abuse, and domestic violence  
          prevention, as specified.  (Code Civ. Proc. Secs. 527.6(d),  
          527.8(e), 527.85(e); Welf. & Inst. Code Secs. 213.5(e),  
          15657.03(c); and Fam. Code Secs. 241, 6220, 6300 et seq.)

           Existing law  provides that a court may grant a TRO in a  
          dissolution, legal separation, or child support proceeding, as  
          specified.  (Fam. Code Secs. 240, 2045, 4620.)

           Existing law  provides that a request for a TRO 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 Civ. Proc. Secs. 527.6(e),  







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          527.8(f), 527.85(f); Welf. & Inst. Code Sec. 15657.03(e); and  
          Fam. Code Sec. 246.)

           Existing law  provides that a TRO issued 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 Civ. Proc. Secs. 527.6(g), 527.8(g); and  
          527.85(g).)

           Existing law  provides that within 21 days, or if good cause  
          appears to the court, 25 days, from the date that a request for  
          a TRO for elder or dependent adult abuse, or domestic violence  
          is granted or denied, a hearing shall be held on the petition.   
          (Welf. & Inst. Code Secs. 213.5, 15657.03(f); and Fam. Code Sec.  
          242.)

           Existing law  provides that after a petition has been filed, the  
          respondent shall be personally served with a copy of the  
          petition, TRO, if any, and notice of hearing of the petition,  
          and that 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 Civ. Proc. Secs.  527.6(m),  
          527.8(m), 527.85(m); Welf. & Inst. Code Sec.15657.03(k); and  
          Fam. Code Sec. 243.)

           Existing law  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 Civ. Proc.  
          Secs. 527.6(o); 527.8(o), 527.85(o); Welf. & Inst. Code Secs.  
          213.5(c), 15657.03; and Fam. Code Sec. 245.)

           Existing law  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, and provides that if the court grants the  
          continuance, any TRO that has been granted remains in effect  
          until the end of the continued hearing, unless otherwise ordered  
          by the court.  (Cal. Rules of Court, Rule 3.1152.)








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           This bill  would authorize a court, upon a showing of good cause  
          or on its own motion, 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.

           This bill  would provide that if a court continues a hearing as  
          provided above, any TRO that has been granted shall remain in  
          effect until the end of the continued hearing, unless otherwise  
          ordered by the court, and would allow the court to modify or  
          terminate the TRO prior to the continued hearing.

           This bill  would make other clarifying and technical changes.

                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author: 

            Existing law creates a potential gap in the protection  
            provided by restraining orders. If a hearing extension is  
            requested, and the requesting party isn't aware they must also  
            ask the court to reissue the temporary restraining order -  
            which otherwise expires on the date of the original hearing -  
            they could very well be left without that protection.

            AB 1081 changes the way temporary restraining orders are  
            extended. Under this bill, any party can request a continuance  
            of the hearing upon showing of good cause. The request may be  
            made either in advance of the hearing in writing, orally in  
            court, or by allowing the court to continue the hearing on its  
            own motion.  A court retains authority to modify or terminate  
            a temporary restraining order when appropriate. 

            By automatically extending temporary restraining orders until  
            the continued hearing date, AB 1081 prevents a gap in provided  
            protection from occurring. This bill allows temporary  
            restraining orders to serve their purpose, namely protecting  
            parties until a hearing takes place.

           2.Simplifies the protective order process for self-represented  
            litigants







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          Parties may wish to postpone a court hearing to a later date if  
          they are not prepared or not available at the date initially set  
          for hearing.  However, the statutes and rules governing  
          continuances differ depending on whether the petitioner or the  
          respondent asks for the continuance.  For a respondent in a  
          protective order matter, a hearing may be continued if the  
          respondent demonstrates good cause.  However, a petitioner in  
          that same matter may only continue a hearing if the petitioner  
          was unable to properly serve the respondent.  

          This bill would instead provide that either party in a civil  
          protective order matter may request a continuance from the  
          court, and the court must grant that continuance upon a showing  
          of good cause.  In support, the Executive Committee of the  
          Family Law Section of the State Bar writes, "there are many  
          legitimate reasons to continue such a hearing, and the  
          continuance of a hearing by itself should not be a reason to  
          terminate a previously issued protective order."  Good cause may  
          be any reason the court, in its discretion, determines is  
          sufficient to postpone a hearing.  This will ensure that the  
          process is the same, regardless of what type of protective order  
          is at issue.  This will create consistency for self-represented  
          litigants and those who provide assistance to these litigants,  
          such as self-help centers and Legal Aid. 

           3.Creates additional protection for victims seeking protective  
            orders
           
          As noted above, existing law has different standards for  
          respondents and petitioners who seek to continue a hearing for a  
          protective order.  For respondents whose hearings have been  
          continued for good cause, any TRO granted will automatically be  
          extended until the end of the continued hearing, unless the  
          court orders otherwise.  However, if a continuance is granted  
          for a petitioner, the person seeking protection, he or she must  
          affirmatively motion the court to extend the TRO to the date and  
          time of the end of the continued hearing.  If the petitioner  
          does not get the TRO extended during the continuance, it  
          expires.   Given that the majority of petitioners are  
          self-represented and may be unaware of the need to make a 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.  








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          This bill would instead provide that when a continuance is  
          granted, the TRO is extended until the end of the continued  
          hearing, unless otherwise ordered by the court, and would allow  
          the court to modify or terminate the TRO.  This arguably gives  
          the court the discretion to balance the interests of alleged  
          victims seeking protection and respondents, whose rights are  
          limited by the very nature of a TRO.  In support the Judicial  
          Council, sponsor, writes: 

            This [bill] will allow all parties and the court to be  
            adequately prepared before proceeding with a hearing on a  
            request for a protective order, making the most efficient use  
            of limited court time. By extending temporary orders to the  
            date of a continued hearing, AB 1081 will continue to provide  
            protection to an individual who requests a protective order  
            until a final ruling can be made on the request for a  
            permanent order.  Without changing this provision, there  
            exists the possibility of a gap in protection between the date  
            of the originally scheduled hearing and the date of either the  
            continued hearing or the issuance of an order extending the  
            original temporary protective order.  AB 1081 will eliminate  
            this gap by making extension of the temporary order automatic.  


           4.Bill does not give parties an opportunity to respond to a  
            request for a continuance
            
           This bill would create an automatic extension of a TRO when  
          either party, for good cause, requests a continuance, unless the  
          court decides otherwise.  For a petitioner, an automatic  
          continuance of a TRO provides, as discussed above, continued  
          protection until both parties are able to present evidence after  
          which the court will decide whether or not to extend the  
          protections of the TRO for up to five years.  

          However, as a matter of practice, a petitioner determines many  
          aspects of court proceedings, including a protective order.  The  
          petitioner chooses when and where to file, what protections to  
          ask for, and has some control over the hearing date set by the  
          court.   As most TROs are issued ex parte, without response from  
          the other party, they impose restrictions on a respondent's  
          behavior without giving the respondent an opportunity to address  
          the court.  A TRO may prevent respondents from staying in their  
          home, seeing their children, or shopping at certain locations  
          for up to 25 days.  Accordingly, a respondent may suffer undue  







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          hardship by an automatic continuance of a TRO which would  
          continue those restraints for a period of time, without giving  
          him or her the opportunity to dispute allegations and/or defend  
          his or her case. 

          This bill, arguably strikes the correct balance, by requiring  
          the court to decide, in its discretion, whether a party has  
          established good cause, and would allow a court to terminate or  
          modify the TRO. Thus, it is hoped that continuances will not be  
          granted without good cause and the court will make decisions  
          that will protect parties from abuse while ensuring that cases  
          are not allowed to drag on when respondents have not had their  
          day in court.
           
            5.Author's amendments
           
          To ensure consistency between the various types of protective  
          orders, the author offers the following amendment: 

            Amend Code Civ. Proc. Secs. 527.6, 527.8, 527.85 and Welf. &  
            Inst. Code Secs.  213.5, 15657.03 to include:   The respondent  
            is entitled, as a matter of course, to one continuance for a  
            reasonable period, to respond to the petition for orders.  


           Support  :  California District Attorneys Association; California  
          Judges Association; Executive Committee of the Family Law  
          Section of the State Bar

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Judicial Council of California

           Related Pending Legislation  :

          AB 494 (Maienschein, 2015), among other things, would authorize  
          a court, in concert with the issuance of an elder or dependent  
          adult protective order, to grant the petitioner exclusive care,  
          possession, or control of an animal owned, possessed, leased,  
          kept, or held by the petitioner, or residing in the residence or  
          household of the petitioner and order the respondent to stay  
          away from the animal, as specified.  








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          SB 196 (Hancock, 2015) would allow a petition for issuance of a  
          protective order to be brought by a county adult protective  
          services agency on behalf of an elder or dependent adult, as  
          specified.  This bill is currently in the Assembly Judiciary  
          Committee.

          Prior Legislation  :

          AB 2089 (Quirk, Chapter 635, Statutes of 2014) revised and  
          clarified the issuance of domestic violence restraining orders  
          under the Domestic Violence Protective Act (DVPA).

          AB 499 (Ting, Chapter 158, Statutes of 2013) provided that an  
          injunction prohibiting harassment may remain in effect for a  
          duration of up to five years and that, upon request of a party,  
          may be renewed for a duration of not more than five additional  
          years, without a showing of any further harassment, subject to  
          termination or modification by the court, as specified. 

          AB 1596 (Hayashi, Chapter 572, Statutes of 2010) implemented  
          recommendations from the Judicial Council's Protective Orders  
          Working Group and made various changes to protective order  
          statutes.  

          AB 99 (Cohn, Chapter 125, Statutes of 2005) extended the  
          duration of protective orders from three to five years.

          AB 878 (Rogan, Chapter 598, Statutes of 1996) expanded the  
          definition of "abuse" for domestic violence purposes to include  
          stalking, annoying, or harassing telephone calls, contact by  
          mail with the intent to annoy or harass, and the intentional  
          destruction of personal property.

          AB 2224 (Kuehl, Chapter 904, Statutes of 1996) increased the  
          penalties for battery against a spouse or person with whom the  
          defendant is cohabiting from 6 months to 12 months.

           Prior Vote  :

          Assembly Floor (Ayes 78, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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