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 AB 1081 (Quirk) Page 2 of ? 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), AB 1081 (Quirk) Page 3 of ? 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.) AB 1081 (Quirk) Page 4 of ? 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 AB 1081 (Quirk) Page 5 of ? 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. AB 1081 (Quirk) Page 6 of ? 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 AB 1081 (Quirk) Page 7 of ? 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. AB 1081 (Quirk) Page 8 of ? 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) ************** AB 1081 (Quirk) Page 9 of ?