SB 196, as amended, 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. 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, commencing July 1, 2016, additionally authorize a county adult protective services agency to file a petition for a protective order on behalf of an elder or dependent adult who has suffered abusebegin delete or
is, or is in imminent danger of becoming, a victim of criminal elder abuse,end delete and has an impaired ability to appreciate and understand the circumstances that place him or her at risk of harm, or who has provided written authorization for the agency to act on his or her behalf. The bill would impose specified requirements on an adult protective services agency that files the petition, including, among others, assisting the elder or dependent adult to attend the hearing and, if a petition to appoint a conservator has not already been filed, referring the elder or dependent adult to the public guardian, as specified. The bill would also recast and clarify the definition of “abuse of an elder or a dependent adult.”
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 15610.07 of the Welfare and Institutions
2Code is amended to read:
(a) “Abuse of an elder or a dependent adult” means
4either of the following:
5(1) Physical abuse, neglect, financial abuse, abandonment,
6isolation, abduction, or other treatment with resulting physical
7harm or pain or mental suffering.
8(2) The deprivation by a care custodian of goods or services
9that are necessary to avoid physical harm or mental suffering.
10(b) This section shall become inoperative on July 1, 2016, and,
11as of January 1, 2017, is repealed, unless a later enacted statute,
12that becomes operative on or
before January 1, 2017, deletes or
13extends the dates on which it becomes inoperative and is repealed.
Section 15610.07 is added to the Welfare and
15Institutions Code, to read:
(a) “Abuse of an elder or a dependent adult” means
17any of the following:
18(1) Physical abuse, neglect, abandonment, isolation, abduction,
19or other treatment with resulting physical harm or pain or mental
20suffering.
21(2) The deprivation by a care custodian of goods or services
22that are necessary to avoid physical harm or mental suffering.
23(3) Financial abuse, as defined in Section 15610.30.
24(b) This section shall become operative on July 1, 2016.
Section 15657.03 of the Welfare and Institutions Code
26 is amended to read:
(a) (1) An elder or dependent adult who has suffered
2abuse as defined in Section 15610.07 may seek protective orders
3as provided in this section.
4(2) A petition may be brought on behalf of an abused elder or
5dependent adult by a conservator or a trustee of the elder or
6dependent adult, an attorney-in-fact of an elder or dependent adult
7who acts within the authority of the power of attorney, a person
8appointed as a guardian ad litem for the elder or dependent adult,
9or other person legally authorized to seek such relief.
10(b) For the purposes of this section:
11(1) “Conservator” means the legally appointed conservator of
12the person or estate of the petitioner, or both.
13(2) “Petitioner” means the elder or dependent adult to be
14protected by the protective orders and, if the court grants the
15petition, the protected person.
16(3) “Protective order” means an order that includes any of the
17following restraining orders, whether issued ex parte, after notice
18and hearing, or in a judgment:
19(A) An order enjoining a party from abusing, intimidating,
20molesting, attacking, striking, stalking, threatening, sexually
21assaulting, battering, harassing, telephoning, including, but not
22limited to, making annoying telephone calls as described in Section
23653m of the Penal Code, destroying
personal property, contacting,
24either directly or indirectly, by mail or otherwise, or coming within
25a specified distance of, or disturbing the peace of, the petitioner,
26and, in the discretion of the court, on a showing of good cause, of
27other named family or household members or a conservator, if
28any, of the petitioner.
29(B) An order excluding a party from the petitioner’s residence
30or dwelling, except that this order shall not be issued if legal or
31equitable title to, or lease of, the residence or dwelling is in the
32sole name of the party to be excluded, or is in the name of the party
33to be excluded and any other party besides the petitioner.
34(C) An order enjoining a party from specified behavior that the
35court determines is necessary to effectuate orders described in
36subparagraph
(A) or (B).
37(4) “Respondent” means the person against whom the protective
38orders are sought and, if the petition is granted, the restrained
39person.
P4 1(c) An order may be issued under this section, with or without
2notice, to restrain any person for the purpose of preventing a
3recurrence of abuse, if a declaration shows, to the satisfaction of
4the court, reasonable proof of a past act or acts of abuse of the
5petitioning elder or dependent adult.
6(d) Upon filing a petition for protective orders under this section,
7the petitioner may obtain a temporary restraining order in
8accordance with Section 527 of the Code of Civil Procedure, except
9to the extent this section provides a rule that is inconsistent. The
10temporary
restraining order may include any of the protective
11orders described in paragraph (3) of subdivision (b). However, the
12court may issue an ex parte order excluding a party from the
13petitioner’s residence or dwelling only on a showing of all of the
14following:
15(1) Facts sufficient for the court to ascertain that the party who
16will stay in the dwelling has a right under color of law to possession
17of the premises.
18(2) That the party to be excluded has assaulted or threatens to
19assault the petitioner, other named family or household member
20of the petitioner, or a conservator of the petitioner.
21(3) That physical or emotional harm would otherwise result to
22the petitioner, other named family or household member of the
23petitioner,
or a conservator of the petitioner.
24(e) A request for the issuance of a temporary restraining order
25without notice under this section shall be granted or denied on the
26same day that the petition is submitted to the court, unless the
27petition is filed too late in the day to permit effective review, in
28which case the order shall be granted or denied on the next day of
29judicial business in sufficient time for the order to be filed that day
30with the clerk of the court.
31(f) Within 21 days, or, if good cause appears to the court, 25
32days, from the date that a request for a temporary restraining order
33is granted or denied, a hearing shall be held on the petition. If no
34request for temporary orders is made, the hearing shall be held
35within 21 days, or, if good cause appears to the court, 25
days,
36from the date that the petition is filed.
37(g) The respondent may file a response that explains or denies
38the alleged abuse.
39(h) The court may issue, upon notice and a hearing, any of the
40orders set forth in paragraph (3) of subdivision (b). The court may
P5 1issue, after notice and hearing, an order excluding a person from
2a residence or dwelling if the court finds that physical or emotional
3harm would otherwise result to the petitioner, other named family
4or household member of the petitioner, or conservator of the
5petitioner.
6(i) (1) In the discretion of the court, an order issued after notice
7and a hearing under this section may have a duration of not more
8than five years, subject to
termination or modification by further
9order of the court either on written stipulation filed with the court
10or on the motion of a party. These orders may be renewed upon
11the request of a party, either for five years or permanently, without
12a showing of any further abuse since the issuance of the original
13order, subject to termination or modification by further order of
14the court either on written stipulation filed with the court or on the
15motion of a party. The request for renewal may be brought at any
16time within the three months before the expiration of the order.
17(2) The failure to state the expiration date on the face of the
18form creates an order with a duration of three years from the date
19of issuance.
20(3) If an action is filed for the purpose of terminating or
21modifying a
protective order prior to the expiration date specified
22in the order by a party other than the protected party, the party
23who is protected by the order shall be given notice, pursuant to
24subdivision (b) of Section 1005 of the Code of Civil Procedure,
25of the proceeding by personal service or, if the protected party has
26satisfied the requirements of Chapter 3.1 (commencing with
27Section 6205) of Division 7 of Title 1 of the Government Code,
28by service on the Secretary of State. If the party who is protected
29by the order cannot be notified prior to the hearing for modification
30or termination of the protective order, the court shall deny the
31motion to modify or terminate the order without prejudice or
32continue the hearing until the party who is protected can be
33properly noticed and may, upon a showing of good cause, specify
34another method for service of process that is reasonably designed
35to afford
actual notice to the protected party. The protected party
36may waive his or her right to notice if he or she is physically
37present in court and does not challenge the sufficiency of the notice.
38(j) In a proceeding under this section, a support person may
39accompany a party in court and, if the party is not represented by
40an attorney, may sit with the party at the table that is generally
P6 1reserved for the party and the party’s attorney. The support person
2is present to provide moral and emotional support for a person
3who alleges he or she is a victim of abuse. The support person is
4not present as a legal adviser and may not provide legal advice.
5The support person may assist the person who alleges he or she is
6a victim of abuse in feeling more confident that he or she will not
7be injured or threatened by the other party during the proceedings
8if
the person who alleges he or she is a victim of abuse and the
9other party are required to be present in close proximity. This
10subdivision does not preclude the court from exercising its
11discretion to remove the support person from the courtroom if the
12court believes the support person is prompting, swaying, or
13influencing the party assisted by the support person.
14(k) Upon the filing of a petition for protective orders under this
15section, the respondent shall be personally served with a copy of
16the petition, notice of the hearing or order to show cause, temporary
17restraining order, if any, and any declarations in support of the
18petition. Service shall be made at least five days before the hearing.
19The court may, on motion of the petitioner or on its own motion,
20shorten the time for service on the respondent.
21(l) A notice of hearing under this section shall notify the
22respondent that if he or she does not attend the hearing, the court
23may make orders against him or her that could last up to five years.
24(m) (1) The court may, upon the filing of a declaration by the
25petitioner that the respondent could not be served within the time
26required by statute, reissue an order previously issued and dissolved
27by the court for failure to serve the respondent. The reissued order
28shall remain in effect until the date set for the hearing.
29(2) The reissued order shall state on its face the date of
30expiration of the order.
31(n) (1) If a respondent, named in an order issued under this
32section after
a hearing, has not been served personally with the
33order but has received actual notice of the existence and substance
34of the order through personal appearance in court to hear the terms
35of the order from the court, no additional proof of service is
36required for enforcement of the order.
37(2) If the respondent named in a temporary restraining order is
38personally served with the order and notice of hearing with respect
39to a restraining order or protective order based on the temporary
40restraining order, but the respondent does not appear at the hearing,
P7 1either personally or by an attorney, and the terms and conditions
2of the restraining order or protective order issued at the hearing
3are identical to the temporary restraining order, except for the
4duration of the order, then the restraining order or protective order
5issued at the hearing may be
served on the respondent by first-class
6mail sent to the respondent at the most current address for the
7respondent that is available to the court.
8(3) The Judicial Council form for temporary orders issued
9pursuant to this subdivision shall contain a statement in
10substantially the following form:
12“If you have been personally served with a temporary restraining
13order and notice of hearing, but you do not appear at the hearing
14either in person or by a lawyer, and a restraining order that is the
15same as this temporary restraining order except for the expiration
16date is issued at the hearing, a copy of the order will be served on
17you by mail at the following address: ____.
18If that address is not correct or you wish to verify that
the
19temporary restraining order was converted to a restraining order
20at the hearing without substantive change and to find out the
21duration of that order, contact the clerk of the court.”
23(o) (1) Information on any protective order relating to elder or
24dependent adult abuse issued by a court pursuant to this section
25shall be transmitted to the Department of Justice in accordance
26with either paragraph (2) or (3).
27(2) The court shall order the petitioner or the attorney for the
28petitioner to deliver a copy of an order issued under this section,
29or a reissuance, extension, modification, or termination of the
30order, and any subsequent proof of service, by the close of the
31business day on which the order, reissuance, extension,
32modification,
or termination was made, to each law enforcement
33agency having jurisdiction over the residence of the petitioner, and
34to any additional law enforcement agencies within the court’s
35discretion as are requested by the petitioner.
36(3) Alternatively, the court or its designee shall transmit, within
37one business day, to law enforcement personnel all information
38required under subdivision (b) of Section 6380 of the Family Code
39regarding any order issued under this section, or a reissuance,
40extension, modification, or termination of the order, and any
P8 1subsequent proof of service, by either one of the following
2methods:
3(A) Transmitting a physical copy of the order or proof of service
4to a local law enforcement agency authorized by the Department
5of Justice to enter orders into the
California Law Enforcement
6Telecommunications System (CLETS).
7(B) With the approval of the Department of Justice, entering
8the order or proof of service into CLETS directly.
9(4) Each appropriate law enforcement agency shall make
10available information as to the existence and current status of these
11orders to law enforcement officers responding to the scene of
12reported abuse.
13(5) An order issued under this section shall, on request of the
14petitioner, be served on the respondent, whether or not the
15respondent has been taken into custody, by any law enforcement
16officer who is present at the scene of reported abuse involving the
17parties to the proceeding. The petitioner shall provide the officer
18with an endorsed copy of
the order and a proof of service, which
19the officer shall complete and send to the issuing court.
20(6) Upon receiving information at the scene of an incident of
21abuse that a protective order has been issued under this section,
22or that a person who has been taken into custody is the respondent
23to that order, if the protected person cannot produce an endorsed
24copy of the order, a law enforcement officer shall immediately
25attempt to verify the existence of the order.
26(7) If the law enforcement officer determines that a protective
27order has been issued, but not served, the officer shall immediately
28notify the respondent of the terms of the order and where a written
29copy of the order can be obtained, and the officer shall at that time
30also enforce the order. The law enforcement officer’s
verbal notice
31of the terms of the order shall constitute service of the order and
32is sufficient notice for the purposes of this section and for the
33purposes of Section 273.6 of the Penal Code.
34(p) Nothing in this section shall preclude either party from
35representation by private counsel or from appearing on the party’s
36own behalf.
37(q) There is no filing fee for a petition, response, or paper
38seeking the reissuance, modification, or enforcement of a protective
39order filed in a proceeding brought pursuant to this section.
P9 1(r) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
2of the Government Code, a petitioner shall not be required to pay
3a fee for law enforcement to serve an order issued under this
4section.
5(s) The prevailing party in any action brought under this section
6may be awarded court costs and attorney’s fees, if any.
7(t) (1) A person subject to a protective order under this section
8shall not own, possess, purchase, receive, or attempt to receive a
9firearm or ammunition while the protective order is in effect.
10(2) The court shall order a person subject to a protective order
11issued under this section to relinquish any firearms he or she owns
12or possesses pursuant to Section 527.9 of the Code of Civil
13Procedure.
14(3) Every person who owns, possesses, purchases, or receives,
15or attempts to purchase or receive a firearm or ammunition while
16subject
to a protective order issued under this section is punishable
17pursuant to Section 29825 of the Penal Code.
18(4) This subdivision shall not apply in a case in which the
19protective order issued under this section was made solely on the
20basis of financial abuse unaccompanied by force, threat,
21harassment, intimidation, or any other form of abuse.
22(u) Any willful disobedience of any temporary restraining order
23or restraining order after hearing granted under this section is
24punishable pursuant to Section 273.6 of the Penal Code.
25(v) This section does not apply to any action or proceeding
26governed by Title 1.6C (commencing with Section 1788) of Part
274 of Division 3 of the Civil Code, Chapter 3 (commencing with
28Section 525) of
Title 7 of Part 2 of the Code of Civil Procedure,
29or Division 10 (commencing with Section 6200) of the Family
30Code. Nothing in this section shall preclude a petitioner’s right to
31use other existing civil remedies.
32(w) The Judicial Council shall develop forms, instructions, and
33rules relating to matters governed by this section. The petition and
34response forms shall be simple and concise, and their use by parties
35in actions brought pursuant to this section shall be mandatory.
36(x) This section shall become inoperative on July 1, 2016, and,
37as of January 1, 2017, is repealed, unless a later enacted statute,
38that becomes operative on or before January 1, 2017, deletes or
39extends the dates on which it becomes inoperative and is repealed.
Section 15657.03 is added to the Welfare and
2Institutions Code, to read:
(a) (1) An elder or dependent adult who has suffered
4abuse may seek protective orders as provided in this section.
5(2) A petition may be brought on behalf of an abused elder or
6dependent adult by a conservator or a trustee of the elder or
7dependent adult, an attorney-in-fact of an elder or dependent adult
8who acts within the authority of the power of attorney, a person
9appointed as a guardian ad litem for the elder or dependent adult,
10or other person legally authorized to seek the relief.
11(3) (A) A petition under this section may be brought on behalf
12of an elder or
dependent adult by a county adult protective services
13agency inbegin delete anyend deletebegin insert eitherend insert of the following circumstances:
14(i) If there is reasonable cause to believe an elder or dependent
15adult is in imminent danger of becoming, or has become, the victim
16of a crime, as provided under Chapter 13 (commencing with
17Section 368) of Title 9 of Part 1 of the Penal Code, and has an
18impaired ability to appreciate and understand the circumstances
19that place him or her at risk of harm.
20(ii)
end delete
21begin insert(end insertbegin inserti)end insert If the elder or dependent adult has suffered abuse as defined
22in subdivision (b) and has an impaired ability to appreciate and
23understand the circumstances that place him or her at risk of harm.
24(iii)
end delete
25begin insert(end insertbegin insertii)end insert If the elder or dependent adult has provided written
26authorization to a county adult protective services agency to act
27on his or her behalf.
28(B) In the case of a petition filed pursuant to clause (i)begin delete or (ii)end delete of
29subparagraph (A) by a county adult protective services agency, a
30referral shall be made to the public guardian consistent with Section
312920 of the Probate Code prior to or concurrent with the filing of
32the petition, unless a petition for appointment of a conservator has
33already been filed with the probate court by the public guardian
34or another party.
35(C) A county adult protective services agency shall be subject
36to any confidentiality restrictions that otherwise apply to its
37activities
under law and shall disclose only those facts as necessary
38to establish reasonable cause for the filing of the petition, including,
39in the case of a petition filed pursuant to clause (i)begin delete or (ii)end delete of
40subparagraph (A), to establish the agency’s belief that the elder or
P11 1dependent adultbegin delete is in imminent danger orend delete has suffered abuse and
2has an impaired ability to appreciate and understand the
3circumstances that place him or her at risk, and as may be requested
4by the court in determining whether to issue an order under this
5section.
6(b) For the purposes of this section:
7(1) “Abuse” has the meaning set forth in Section 15610.07.
8(2) “Conservator” means the legally appointed conservator of
9the person or estate of the petitioner, or both.
10(3) “Petitioner” means the elder or dependent adult to be
11protected by the protective orders and, if the court grants the
12petition, the protected person.
13(4) “Protective order” means an order that includes any of the
14following restraining orders, whether issued ex parte, after notice
15and hearing, or in a judgment:
16(A) An order enjoining a party from abusing, intimidating,
17molesting, attacking, striking, stalking, threatening, sexually
18assaulting, battering, harassing, telephoning, including, but not
19limited to, making annoying telephone calls as
described in Section
20653m of the Penal Code, destroying personal property, contacting,
21either directly or indirectly, by mail or otherwise, or coming within
22a specified distance of, or disturbing the peace of, the petitioner,
23and, in the discretion of the court, on a showing of good cause, of
24other named family or household members or a conservator, if
25any, of the petitioner.
26(B) An order excluding a party from the petitioner’s residence
27or dwelling, except that this order shall not be issued if legal or
28
equitable title to, or lease of, the residence or dwelling is in the
29sole name of the party to be excluded, or is in the name of the party
30to be excluded and any other party besides the petitioner.
31(C) An order enjoining a party from specified behavior that the
32court determines is necessary to effectuate orders described in
33subparagraph (A) or (B).
34(5) “Respondent” means the person against whom the protective
35orders are sought and, if the petition is granted, the restrained
36person.
37(c) An order may be issued under this section, with or without
38notice, to restrain any person for the purpose of preventing a
39recurrence of abuse, if a declaration shows, to the satisfaction of
P12 1the court, reasonable proof
of a past act or acts of abuse of the
2petitioning elder or dependent adult.
3(d) Upon filing a petition for protective orders under this section,
4the petitioner may obtain a temporary restraining order in
5accordance with Section 527 of the Code of Civil Procedure, except
6to the extent this section provides a rule that is inconsistent. The
7temporary restraining order may include any of the protective
8orders described in paragraph (4) of subdivision (b). However, the
9court may issue an ex parte order excluding a party from the
10petitioner’s residence or dwelling only on a showing of all of the
11following:
12(1) Facts sufficient for the court to ascertain that the party who
13will stay in the dwelling has a right under color of law to possession
14of the premises.
15(2) That the party to be excluded has assaulted or threatens to
16assault the petitioner, other named family or household member
17of the petitioner, or a conservator of the petitioner.
18(3) That physical or emotional harm would otherwise result to
19the petitioner, other named family or household member of the
20petitioner, or a conservator of the petitioner.
21(e) A request for the issuance of a temporary restraining order
22without notice under this section shall be granted or denied on the
23same day that the petition is submitted to the court, unless the
24petition is filed too late in the day to permit effective review, in
25which case the order shall be granted or denied on the next day of
26judicial business in sufficient time for the
order to be filed that day
27with the clerk of the court.
28(f) Within 21 days, or, if good cause appears to the court, 25
29days, from the date that a request for a temporary restraining order
30is granted or denied, a hearing shall be held on the petition. If no
31request for temporary orders is made, the hearing shall be held
32within 21 days, or, if good cause appears to the court, 25 days,
33from the date that the petition is filed.
34(g) The respondent may file a response that explains or denies
35the alleged abuse.
36(h) The court may issue, upon notice and a hearing, any of the
37orders set forth in paragraph (4) of subdivision (b). The court may
38issue, after notice and hearing, an order excluding a person from
39a residence
or dwelling if the court finds that physical or emotional
40harm would otherwise result to the petitioner, other named family
P13 1or household member of the petitioner, or conservator of the
2petitioner.
3(i) (1) In the discretion of the court, an order issued after notice
4and a hearing under this section may have a duration of not more
5than five years, subject to termination or modification by further
6order of the court either on written stipulation filed with the court
7or on the motion of a party. These orders may be renewed upon
8the request of a party, either for five years or permanently, without
9a showing of any further abuse since the issuance of the original
10order, subject to termination or modification by further order of
11the court either on written stipulation filed with the court or on the
12motion of a party. The request for
renewal may be brought at any
13time within the three months before the expiration of the order.
14(2) The failure to state the expiration date on the face of the
15form creates an order with a duration of three years from the date
16of issuance.
17(3) If an action is filed for the purpose of terminating or
18 modifying a protective order prior to the expiration date specified
19in the order by a party other than the protected party, the party
20who is protected by the order shall be given notice, pursuant to
21subdivision (b) of Section 1005 of the Code of Civil Procedure,
22of the proceeding by personal service or, if the protected party has
23satisfied the requirements of Chapter 3.1 (commencing with
24Section 6205) of Division 7 of Title 1 of the Government Code,
25by service on the Secretary of
State. If the party who is protected
26by the order cannot be notified prior to the hearing for modification
27or termination of the protective order, the court shall deny the
28motion to modify or terminate the order without prejudice or
29continue the hearing until the party who is protected can be
30properly noticed and may, upon a showing of good cause, specify
31another method for service of process that is reasonably designed
32to afford actual notice to the protected party. The protected party
33may waive his or her right to notice if he or she is physically
34present in court and does not challenge the sufficiency of the notice.
35(j) In a proceeding under this section, a support person may
36accompany a party in court and, if the party is not represented by
37an attorney, may sit with the party at the table that is generally
38reserved for the party
and the party’s attorney. The support person
39is present to provide moral and emotional support for a person
40who alleges he or she is a victim of abuse. The support person is
P14 1not present as a legal adviser and may not provide legal advice.
2The support person may assist the person who alleges he or she is
3a victim of abuse in feeling more confident that he or she will not
4be injured or threatened by the other party during the proceedings
5if the person who alleges he or she is a victim of abuse and the
6other party are required to be present in close proximity. This
7subdivision does not preclude the court from exercising its
8discretion to remove the support person from the courtroom if the
9court believes the support person is prompting, swaying, or
10influencing the party assisted by the support person.
11(k) Upon the filing of a petition for protective
orders under this
12section, the respondent shall be personally served with a copy of
13the petition, notice of the hearing or order to show cause, temporary
14restraining order, if any, and any declarations in support of the
15petition. Service shall be made at least five days before the hearing.
16The court may, on motion of the petitioner or on its own motion,
17shorten the time for service on the respondent.
18(l) A notice of hearing under this section shall notify the
19respondent that if he or she does not attend the hearing, the court
20may make orders against him or her that could last up to five years.
21(m) (1) The court may, upon the filing of a declaration by the
22petitioner that the respondent could not be served within the time
23required by statute, reissue an order
previously issued and dissolved
24by the court for failure to serve the respondent. The reissued order
25shall remain in effect until the date set for the hearing.
26(2) The reissued order shall state on its face the date of
27expiration of the order.
28(n) (1) If a respondent, named in an order issued under this
29section after a hearing, has not been served personally with the
30order but has received actual notice of the existence and substance
31of the order through personal appearance in court to hear the terms
32of the order from the court, no additional proof of service is
33required for enforcement of the order.
34(2) If the respondent named in a temporary restraining order is
35personally served with the order and
notice of hearing with respect
36to a restraining order or protective order based on the temporary
37restraining order, but the respondent does not appear at the hearing,
38either personally or by an attorney, and the terms and conditions
39of the restraining order or protective order issued at the hearing
40are identical to the temporary restraining order, except for the
P15 1duration of the order, then the restraining order or protective order
2issued at the hearing may be served on the respondent by first-class
3mail sent to the respondent at the most current address for the
4respondent that is available to the court.
5(3) The Judicial Council form for temporary orders issued
6pursuant to this subdivision shall contain a statement in
7substantially the following form:
9“If you
have been personally served with a temporary restraining
10order and notice of hearing, but you do not appear at the hearing
11either in person or by a lawyer, and a restraining order that is the
12same as this temporary restraining order except for the expiration
13date is issued at the hearing, a copy of the order will be served on
14you by mail at the following address: ____.
15If that address is not correct or you wish to verify that the
16temporary restraining order was converted to a restraining order
17at the hearing without substantive change and to find out the
18duration of that order, contact the clerk of the court.”
20(o) (1) Information on any protective order relating to elder or
21dependent adult abuse issued by a court pursuant to this section
22shall
be transmitted to the Department of Justice in accordance
23with either paragraph (2) or (3).
24(2) The court shall order the petitioner or the attorney for the
25petitioner to deliver a copy of an order issued under this section,
26or a reissuance, extension, modification, or termination of the
27order, and any subsequent proof of service, by the close of the
28business day on which the order, reissuance, extension,
29modification, or termination was made, to each law enforcement
30agency having jurisdiction over the residence of the petitioner, and
31to any additional law enforcement agencies within the court’s
32discretion as are requested by the petitioner.
33(3) Alternatively, the court or its designee shall transmit, within
34one business day, to law enforcement personnel all information
35required
under subdivision (b) of Section 6380 of the Family Code
36regarding any order issued under this section, or a reissuance,
37extension, modification, or termination of the order, and any
38subsequent proof of service, by either one of the following
39methods:
P16 1(A) Transmitting a physical copy of the order or proof of service
2to a local law enforcement agency authorized by the Department
3of Justice to enter orders into the California Law Enforcement
4Telecommunications System (CLETS).
5(B) With the approval of the Department of Justice, entering
6the order or proof of service into CLETS directly.
7(4) Each appropriate law enforcement agency shall make
8available information as to the existence and current status of these
9orders to
law enforcement officers responding to the scene of
10reported abuse.
11(5) An order issued under this section shall, on request of the
12petitioner, be served on the respondent, whether or not the
13respondent has been taken into custody, by any law enforcement
14officer who is present at the scene of reported abuse involving the
15parties to the proceeding. The petitioner shall provide the officer
16with an endorsed copy of the order and a proof of service, which
17the officer shall complete and send to the issuing court.
18(6) Upon receiving information at the scene of an incident of
19abuse that a protective order has been issued under this section,
20or that a person who has been taken into custody is the respondent
21to that order, if the protected person cannot produce an endorsed
22copy of the
order, a law enforcement officer shall immediately
23attempt to verify the existence of the order.
24(7) If the law enforcement officer determines that a protective
25order has been issued, but not served, the officer shall immediately
26notify the respondent of the terms of the order and where a written
27copy of the order can be obtained, and the officer shall at that time
28also enforce the order. The law enforcement officer’s verbal notice
29of the terms of the order shall constitute service of the order and
30is sufficient notice for the purposes of this section and for the
31purposes of Section 273.6 of the Penal Code.
32(p) Nothing in this section shall preclude either party from
33representation by private counsel or from appearing on the party’s
34own behalf.
35(q) There is no filing fee for a petition, response, or paper
36seeking the reissuance, modification, or enforcement of a protective
37order filed in a proceeding brought pursuant to this section.
38(r) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
39of the Government Code, a petitioner shall not be required to pay
P17 1a fee for law enforcement to serve an order issued under this
2section.
3(s) The prevailing party in any action brought under this section
4may be awarded court costs and attorney’s fees, if any.
5(t) (1) A person subject to a protective order under this section
6shall not own, possess, purchase, receive, or attempt to receive a
7firearm
or ammunition while the protective order is in effect.
8(2) The court shall order a person subject to a protective order
9issued under this section to relinquish any firearms he or she owns
10or possesses pursuant to Section 527.9 of the Code of Civil
11Procedure.
12(3) Every person who owns, possesses, purchases, or receives,
13or attempts to purchase or receive a firearm or ammunition while
14subject to a protective order issued under this section is punishable
15pursuant to Section 29825 of the Penal Code.
16(4) This subdivision shall not apply in a case in which the
17protective order issued under this section was made solely on the
18basis of financial abuse unaccompanied by force, threat,
19harassment, intimidation, or any other form of
abuse.
20(u) In a proceeding brought under paragraph (3) of subdivision
21(a), all of the following apply:
22(1) Upon the filing of a petition for a protective order, the elder
23or dependent adult on whose behalf the petition has been filed
24shall receive a copy of the petition, a notice of the hearing, and
25any declarations submitted in support of the petition. The elder or
26dependent adult shall receive this information at least five days
27before the hearing. The court may, on motion of the petitioner or
28on its own motion, shorten the time for provision of this
29information to the elder or dependent adult.
30(2) The adult protective services agency shall make reasonable
31efforts to assist the elder or dependent adult to attend the
hearing
32and provide testimony to the court, if he or she wishes to do so. If
33the elder or dependent adult does not attend the hearing, the agency
34shall provide information to the court at the hearing regarding the
35reasons why the elder or dependent adult is not in attendance.
36(3) Upon the filing of a petition for a protective order and upon
37issuance of an order granting the petition, the county adult
38protective services agency shall take all reasonable steps to provide
39for the safety of the elder or dependent adult, pursuant to Chapter
4013 (commencing with Section 15750), which may include, but are
P18 1not limited to, facilitating the location of alternative
2accommodations for the elder or dependent adult, if needed.
3(v) Any willful disobedience of any temporary restraining order
4or
restraining order after hearing granted under this section is
5punishable pursuant to Section 273.6 of the Penal Code.
6(w) This section does not apply to any action or proceeding
7governed by Title 1.6C (commencing with Section 1788) of Part
84 of Division 3 of the Civil Code, Chapter 3 (commencing with
9Section 525) of Title 7 of Part 2 of the Code of Civil Procedure,
10or Division 10 (commencing with Section 6200) of the Family
11Code. Nothing in this section shall preclude a petitioner’s right to
12use other existing civil remedies.
13(x) The Judicial Council shall develop forms, instructions, and
14rules relating to matters governed by this section. The petition and
15response forms shall be simple and concise, and shall be used by
16parties in actions brought pursuant to this section.
17(y) This section shall become operative on July 1, 2016.
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