BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1081|
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CONSENT
Bill No: AB 1081
Author: Quirk (D)
Amended: 6/25/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/23/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
ASSEMBLY FLOOR: 78-0, 5/14/15 - See last page for vote
SUBJECT: Protective orders
SOURCE: Judicial Council of California
DIGEST: This bill allows 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 authorizes the court to
grant a continuance on its own motion. This bill, upon granting
a continuance, requires that any TRO that had previously been
granted remain in effect until the conclusion of the continued
hearing, and authorizes the court to modify or terminate that
TRO.
ANALYSIS:
Existing law:
1)Provides that a court may issue a TRO for civil harassment,
workplace violence, postsecondary education violence, juvenile
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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.)
2)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.)
3)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), 527.8(f),
527.85(f); Welf. & Inst. Code Sec. 15657.03(e); and Fam. Code
Sec. 246.)
4)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).)
5)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.)
6)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),
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527.8(m), 527.85(m); Welf. & Inst. Code Sec.15657.03(k); and
Fam. Code Sec. 243.)
7)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.)
8)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.)
This bill:
1)Authorizes a court, upon a showing of good cause or on its own
motion, to grant one 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)Provides 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 allows the court to modify or
terminate the TRO prior to the continued hearing.
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3)Makes other clarifying and technical changes.
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
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.
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/25/15)
Judicial Council of California (source)
California District Attorneys Association
California Judges Association
Executive Committee of the Family Law Section of the State Bar
OPPOSITION: (Verified6/25/15)
None received
ARGUMENTS IN SUPPORT: Judicial Council of California,
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.
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ASSEMBLY FLOOR: 78-0, 5/14/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Linder, Medina
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
6/26/15 14:12:56
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