Senate BillNo. 196


Introduced by Senator Hancock

February 10, 2015


An act to amend Section 15657.03 of the Welfare and Institutions Code, relating to elder abuse.

LEGISLATIVE COUNSEL’S DIGEST

SB 196, as introduced, Hancock. Elder abuse: protective orders.

Existing law authorizes a court to issue a protective order to restrain any person for the purpose of preventing the abuse of an elder or dependent adult, as specified. Under existing law, certain persons are authorized to file a petition for these protective orders on behalf of the elder or dependent adult, including a conservator or trustee, an attorney-in-fact, a person appointed as a guardian ad litem, or other person legally authorized to seek the order.

This bill would additionally authorize a county adult protective services agency to file a petition for a protective order on behalf of an elder or dependent adult if the elder or dependent adult has been identified as lacking capacity and a conservatorship is being sought.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P1    1

SECTION 1.  

Section 15657.03 of the Welfare and Institutions
2Code
is amended to read:

3

15657.03.  

(a) (1) An elder or dependent adult who has suffered
4abusebegin delete as defined in Section 15610.07end delete may seek protective orders
5as provided in this section.

P2    1(2) A petition may be brought on behalf of an abused elder or
2dependent adult by a conservator or a trustee of the elder or
3dependent adult,begin insert a county adult protective services agency in a
4case in which an elder or dependent adult has been identified as
5lacking capacity and a conservatorship is being sought,end insert
an
6attorney-in-fact of an elder or dependent adult who acts within the
7authority of the power of attorney, a person appointed as a guardian
8ad litem for the elder or dependent adult, or other person legally
9authorized to seekbegin delete suchend deletebegin insert theend insert relief.

10(b) For the purposes of this section:

begin insert

11(1) “Abuse” has the meaning set forth in Section 15610.07.

end insert
begin delete

12(1)

end delete

13begin insert(2)end insert “Conservator” means the legally appointed conservator of
14the person or estate of the petitioner, or both.

begin delete

15(2)

end delete

16begin insert(3)end insert “Petitioner” means the elder or dependent adult to be
17protected by the protective orders and, if the court grants the
18petition, the protected person.

begin delete

19(3)

end delete

20begin insert(4)end insert “Protective order” means an order that includes any of the
21following restraining orders, whether issued ex parte, after notice
22and hearing, or in a judgment:

23(A) An order enjoining a party from abusing, intimidating,
24molesting, attacking, striking, stalking, threatening, sexually
25assaulting, battering, harassing, telephoning, including, but not
26limited to, making annoying telephone calls as described in Section
27653m of the Penal Code, destroying personal property, contacting,
28either directly or indirectly, by mail or otherwise, or coming within
29a specified distance of, or disturbing the peace of, the petitioner,
30and, in the discretion of the court, on a showing of good cause, of
31other named family or household members or a conservator, if
32any, of the petitioner.

33(B) An order excluding a party from the petitioner’s residence
34or dwelling, except that this order shall not be issued if legal or
35equitable title to, or lease of, the residence or dwelling is in the
36sole name of the party to be excluded, or is in the name of the party
37to be excluded and any other party besides the petitioner.

38(C) An order enjoining a party from specified behavior that the
39court determines is necessary to effectuate orders described in
40subparagraph (A) or (B).

begin delete

P3    1(4)

end delete

2begin insert(5)end insert “Respondent” means the person against whom the protective
3orders are sought and, if the petition is granted, the restrained
4person.

5(c) An order may be issued under this section, with or without
6notice, to restrain any person for the purpose of preventing a
7recurrence of abuse, if a declaration shows, to the satisfaction of
8the court, reasonable proof of a past act or acts of abuse of the
9petitioning elder or dependent adult.

10(d) Upon filing a petition for protective orders under this section,
11the petitioner may obtain a temporary restraining order in
12accordance with Section 527 of the Code of Civil Procedure, except
13to the extent this section provides a rule that is inconsistent. The
14temporary restraining order may include any of the protective
15orders described in paragraphbegin delete (3)end deletebegin insert (4)end insert of subdivision (b). However,
16the court may issue an ex parte order excluding a party from the
17petitioner’s residence or dwelling only on a showing of all of the
18following:

19(1) Facts sufficient for the court to ascertain that the party who
20will stay in the dwelling has a right under color of law to possession
21of the premises.

22(2) That the party to be excluded has assaulted or threatens to
23assault the petitioner, other named family or household member
24of the petitioner, or a conservator of the petitioner.

25(3) That physical or emotional harm would otherwise result to
26the petitioner, other named family or household member of the
27petitioner, or a conservator of the petitioner.

28(e) A request for the issuance of a temporary restraining order
29without notice under this section shall be granted or denied on the
30same day that the petition is submitted to the court, unless the
31petition is filed too late in the day to permit effective review, in
32which case the order shall be granted or denied on the next day of
33judicial business in sufficient time for the order to be filed that day
34with the clerk of the court.

35(f) Within 21 days, or, if good cause appears to the court, 25
36days, from the date that a request for a temporary restraining order
37is granted or denied, a hearing shall be held on the petition. If no
38request for temporary orders is made, the hearing shall be held
39within 21 days, or, if good cause appears to the court, 25 days,
40from the date that the petition is filed.

P4    1(g) The respondent may file a response that explains or denies
2the alleged abuse.

3(h) The court may issue, upon notice and a hearing, any of the
4orders set forth in paragraphbegin delete (3)end deletebegin insert (4)end insert of subdivision (b). The court
5may issue, after notice and hearing, an order excluding a person
6from a residence or dwelling if the court finds that physical or
7emotional harm would otherwise result to the petitioner, other
8named family or household member of the petitioner, or
9conservator of the petitioner.

10(i) (1) In the discretion of the court, an order issued after notice
11and a hearing under this section may have a duration of not more
12than five years, subject to termination or modification by further
13order of the court either on written stipulation filed with the court
14or on the motion of a party. These orders may be renewed upon
15the request of a party, either for five years or permanently, without
16a showing of any further abuse since the issuance of the original
17order, subject to termination or modification by further order of
18the court either on written stipulation filed with the court or on the
19motion of a party. The request for renewal may be brought at any
20time within the three months before the expiration of the order.

21(2) The failure to state the expiration date on the face of the
22form creates an order with a duration of three years from the date
23of issuance.

24(3) If an action is filed for the purpose of terminating or
25modifying a protective order prior to the expiration date specified
26in the order by a party other than the protected party, the party
27who is protected by the order shall be given notice, pursuant to
28subdivision (b) of Section 1005 of the Code of Civil Procedure,
29of the proceeding by personal service or, if the protected party has
30satisfied the requirements of Chapter 3.1 (commencing with
31Section 6205) of Division 7 of Title 1 of the Government Code,
32by service on the Secretary of State. If the party who is protected
33by the order cannot be notified prior to the hearing for modification
34or termination of the protective order, the court shall deny the
35motion to modify or terminate the order without prejudice or
36continue the hearing until the party who is protected can be
37properly noticed and may, upon a showing of good cause, specify
38another method for service of process that is reasonably designed
39to afford actual notice to the protected party. The protected party
P5    1may waive his or her right to notice if he or she is physically
2present in court and does not challenge the sufficiency of the notice.

3(j) In a proceeding under this section, a support person may
4accompany a party in court and, if the party is not represented by
5an attorney, may sit with the party at the table that is generally
6reserved for the party and the party’s attorney. The support person
7is present to provide moral and emotional support for a person
8who alleges he or she is a victim of abuse. The support person is
9not present as a legal adviser and may not provide legal advice.
10The support person may assist the person who alleges he or she is
11a victim of abuse in feeling more confident that he or she will not
12be injured or threatened by the other party during the proceedings
13if the person who alleges he or she is a victim of abuse and the
14other party are required to be present in close proximity. This
15subdivision does not preclude the court from exercising its
16discretion to remove the support person from the courtroom if the
17court believes the support person is prompting, swaying, or
18influencing the party assisted by the support person.

19(k) Upon the filing of a petition for protective orders under this
20section, the respondent shall be personally served with a copy of
21the petition, notice of the hearing or order to show cause, temporary
22restraining order, if any, and any declarations in support of the
23petition. Service shall be made at least five days before the hearing.
24The court may, on motion of the petitioner or on its own motion,
25shorten the time for service on the respondent.

26(l) A notice of hearing under this section shall notify the
27respondent that if he or she does not attend the hearing, the court
28may make orders against him or her that could last up to five years.

29(m) (1) The court may, upon the filing of a declaration by the
30petitioner that the respondent could not be served within the time
31required by statute, reissue an order previously issued and dissolved
32by the court for failure to serve the respondent. The reissued order
33shall remain in effect until the date set for the hearing.

34(2) The reissued order shall state on its face the date of
35expiration of the order.

36(n) (1) If a respondent, named in an order issued under this
37section after a hearing, has not been served personally with the
38order but has received actual notice of the existence and substance
39of the order through personal appearance in court to hear the terms
P6    1of the order from the court, no additional proof of service is
2required for enforcement of the order.

3(2) If the respondent named in a temporary restraining order is
4personally served with the order and notice of hearing with respect
5to a restraining order or protective order based on the temporary
6restraining order, but the respondent does not appear at the hearing,
7either personally or by an attorney, and the terms and conditions
8of the restraining order or protective order issued at the hearing
9are identical to the temporary restraining order, except for the
10duration of the order, then the restraining order or protective order
11issued at the hearing may be served on the respondent by first-class
12mail sent to the respondent at the most current address for the
13respondent that is available to the court.

14(3) The Judicial Council form for temporary orders issued
15pursuant to this subdivision shall contain a statement in
16substantially the following form:


18“If you have been personally served with a temporary restraining
19order and notice of hearing, but you do not appear at the hearing
20either in person or by a lawyer, and a restraining order that is the
21same as this temporary restraining order except for the expiration
22date is issued at the hearing, a copy of the order will be served on
23you by mail at the following address: ____.

24If that address is not correct or you wish to verify that the
25temporary restraining order was converted to a restraining order
26at the hearing without substantive change and to find out the
27duration of that order, contact the clerk of the court.”


29(o) (1) Information on any protective order relating to elder or
30dependent adult abuse issued by a court pursuant to this section
31shall be transmitted to the Department of Justice in accordance
32with either paragraph (2) or (3).

33(2) The court shall order the petitioner or the attorney for the
34petitioner to deliver a copy of an order issued under this section,
35or a reissuance, extension, modification, or termination of the
36order, and any subsequent proof of service, by the close of the
37business day on which the order, reissuance, extension,
38modification, or termination was made, to each law enforcement
39agency having jurisdiction over the residence of the petitioner, and
P7    1to any additional law enforcement agencies within the court’s
2discretion as are requested by the petitioner.

3(3) Alternatively, the court or its designee shall transmit, within
4one business day, to law enforcement personnel all information
5required under subdivision (b) of Section 6380 of the Family Code
6regarding any order issued under this section, or a reissuance,
7extension, modification, or termination of the order, and any
8subsequent proof of service, by either one of the following
9methods:

10(A) Transmitting a physical copy of the order or proof of service
11to a local law enforcement agency authorized by the Department
12of Justice to enter orders into the California Law Enforcement
13Telecommunications System (CLETS).

14(B) With the approval of the Department of Justice, entering
15the order or proof of service into CLETS directly.

16(4) Each appropriate law enforcement agency shall make
17available information as to the existence and current status of these
18orders to law enforcement officers responding to the scene of
19reported abuse.

20(5) An order issued under this section shall, on request of the
21petitioner, be served on the respondent, whether or not the
22respondent has been taken into custody, by any law enforcement
23officer who is present at the scene of reported abuse involving the
24parties to the proceeding. The petitioner shall provide the officer
25with an endorsed copy of the order and a proof of service, which
26the officer shall complete and send to the issuing court.

27(6) Upon receiving information at the scene of an incident of
28abuse that a protective order has been issued under this section,
29or that a person who has been taken into custody is the respondent
30to that order, if the protected person cannot produce an endorsed
31copy of the order, a law enforcement officer shall immediately
32attempt to verify the existence of the order.

33(7) If the law enforcement officer determines that a protective
34order has been issued, but not served, the officer shall immediately
35notify the respondent of the terms of the order and where a written
36copy of the order can be obtained, and the officer shall at that time
37also enforce the order. The law enforcement officer’s verbal notice
38of the terms of the order shall constitute service of the order and
39is sufficient notice for the purposes of this section and for the
40purposes of Section 273.6 of the Penal Code.

P8    1(p) Nothing in this section shall preclude either party from
2representation by private counsel or from appearing on the party’s
3own behalf.

4(q) There is no filing fee for a petition, response, or paper
5seeking the reissuance, modification, or enforcement of a protective
6order filed in a proceeding brought pursuant to this section.

7(r) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
8of the Government Code, a petitioner shall not be required to pay
9a fee for law enforcement to serve an order issued under this
10section.

11(s) The prevailing party in any action brought under this section
12may be awarded court costs and attorney’s fees, if any.

13(t) (1) A person subject to a protective order under this section
14shall not own, possess, purchase, receive, or attempt to receive a
15firearm or ammunition while the protective order is in effect.

16(2) The court shall order a person subject to a protective order
17issued under this section to relinquish any firearms he or she owns
18or possesses pursuant to Section 527.9 of the Code of Civil
19Procedure.

20(3) Every person who owns, possesses, purchases, or receives,
21or attempts to purchase or receive a firearm or ammunition while
22subject to a protective order issued under this section is punishable
23pursuant to Section 29825 of the Penal Code.

24(4) This subdivision shall not apply in a case in which the
25protective order issued under this section was made solely on the
26basis of financial abuse unaccompanied by force, threat,
27harassment, intimidation, or any other form of abuse.

28(u) Any willful disobedience of any temporary restraining order
29or restraining order after hearing granted under this section is
30punishable pursuant to Section 273.6 of the Penal Code.

31(v) This section does not apply to any action or proceeding
32governed by Title 1.6C (commencing with Section 1788) of Part
334 of Division 3 of the Civil Code, by Chapter 3 (commencing with
34Section 525) of Title 7 of Part 2 of the Code of Civil Procedure,
35or by Division 10 (commencing with Section 6200) of the Family
36Code. Nothing in this section shall preclude a petitioner’s right to
37use other existing civil remedies.

38(w) The Judicial Council shall develop forms, instructions, and
39rules relating to matters governed by this section. The petition and
P9    1response forms shall be simple and concise, and their use by parties
2in actions brought pursuant to this section shall be mandatory.



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