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