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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