BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1081


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1081 (Quirk)


          As Amended  August 19, 2015


          Majority vote


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          |ASSEMBLY:  | 78-0 | (May 14,      |SENATE: |40-0  | (September 1,   |
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          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. 








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          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  








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            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  








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            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









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          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  








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          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  








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          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