BILL ANALYSIS Ó
AB 1081
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
1081 (Quirk)
As Amended August 19, 2015
Majority vote
--------------------------------------------------------------------
|ASSEMBLY: | 78-0 | (May 14, |SENATE: |40-0 | (September 1, |
| | |2015) | | |2015) |
| | | | | | |
| | | | | | |
--------------------------------------------------------------------
Original Committee Reference: JUD.
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)Allows a respondent one continuance as a matter of course for
a reasonable period of time.
AB 1081
Page 2
4)Provides that if a court continues a hearing, any temporary
restraining order (TRO) 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 TRO.
5)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.
6)Adds chaptering out amendments for AB 494 (Maienschein) of the
current legislative session, and SB 196 (Hancock) of the
current legislative session.
The Senate amendments allow a respondent one continuance, as a
matter of course and for a reasonable period of time, for a
hearing involving the issuance of restraining orders to prevent
civil harassment, workplace violence, private postsecondary
education violence, elder or dependent adult abuse, or juvenile
abuse, and change the term "injunction" to "order after
hearing," and add chaptering out amendments.
EXISTING LAW:
1)Provides that a court may issue a TRO for civil harassment, as
specified.
2)Provides that a court may issue a TRO for workplace violence,
as specified.
3)Provides that a court may issue a TRO for postsecondary
AB 1081
Page 3
education violence, as specified.
4)Provides that a court may issue a TRO for elder or dependent
adult abuse, as specified.
5)Provides that a court may issue a TRO for domestic violence
prevention, as specified.
6)Provides that a court may issue a TRO for juvenile abuse, as
specified.
7)Provides that a court may grant a TRO in a dissolution or
legal separation proceeding, or in a child support proceeding,
as specified.
8)Provides that in a proceeding to establish a parent and child
relationship, a court may grant a TRO to prevent a party from
removing a child from the state, as specified.
9)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.
10) Provides that an issued TRO 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.
11) 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
AB 1081
Page 4
granted or denied, a hearing shall be held on the petition.
12)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. 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.
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.
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 TRO that has been
granted remains in effect until the end of the continued
hearing unless otherwise ordered by the court. (California
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.
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.
FISCAL EFFECT: None
AB 1081
Page 5
COMMENTS: This bill, sponsored by the 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.
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
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 an order after a hearing, the order 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 an order after a hearing 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.
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
AB 1081
Page 6
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 Sections 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
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
AB 1081
Page 7
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.
Analysis Prepared by:
Leora Gershenzon / JUD. / (916) 319-2334 FN:
0001434