BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1596 (Hayashi)
As Amended May 19, 2010
Hearing Date: June 22, 2010
Fiscal: Yes
Urgency: No
KB:jd
SUBJECT
Protective Orders: Emergency Protective Orders: Enforcement
Priority
DESCRIPTION
This bill, sponsored by the Judicial Council, would implement
recommendations from the Judicial Council's Protective Orders
Working Group and make various changes to protective order
statutes. This bill would not take effect until January 1,
2012.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
Over the last two decades, the California Legislature has
enacted a significant number of laws designed to protect victims
of domestic violence, civil harassment, elder and dependent
adult abuse, and workplace violence. These laws authorize
courts to issue temporary restraining orders and injunctions
against persons engaging in violent, threatening, abusive, or
harassing conduct. In order to facilitate the establishment of
protective orders for self-represented victims, the Judicial
Council has developed extensive, standardized forms to be used
in protective order proceedings. Two years ago, the Judicial
Council established the Protective Orders Working Group, which
was tasked with a comprehensive review of issues and form
changes relating to protective orders. The working group is
composed of members from the Judicial Council's Civil and Small
Claims Advisory Committee, the Family and Juvenile Law Advisory
(more)
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Committee, the Criminal Law Advisory Committee, and the Domestic
Violence Practice and Procedure Task Force.
This bill would implement recommendations from the Protective
Orders Working Group for statutory procedural changes to the
protective orders statutes which are intended to provide more
clarity and consistency for requests for protective orders. In
order to provide sufficient time for the Judicial Council to
implement the requisite form changes in this bill, and to
integrate these forms into the courts' case management system,
this bill would not take effect until January 1, 2012.
This bill has been double-referred to the Senate Public Safety
Committee.
CHANGES TO EXISTING LAW
Existing law generally authorizes courts to issue protective
orders in proceedings involving civil harassment, workplace and
postsecondary school site violence, domestic violence, juvenile
law, and elder or dependent adult abuse. (Code of Civ. Proc.
Secs. 527.6, 527.8, 527.85; Fam. Code Sec. 6200. et seq.; Welf.
& Inst. Code Secs. 213.5, 15657.03.)
1.Existing law describes the parties to a civil harassment or a
workplace violence proceeding as the "plaintiff" and
"defendant." (Code of Civ. Proc. Secs. 527.6(c), 527.8 (e).)
Existing law describes the parties in elder and dependent
adult abuse proceedings as the "petitioner" and the
"respondent." (Welf. & Inst. Code Sec. 15657.03.) Existing
law describes the parties in domestic violence proceedings as
the "applicant" or the "petitioner" and the "respondent."
(Fam. Code Secs. 241, 243, 6304.)
This bill would describe the parties in all types of
protective order proceedings consistently as the "petitioner"
and the "respondent."
This bill would define "petitioner" as the person to be
protected by the temporary restraining order and injunction
and, if the court grants the petition, the protected person.
This bill would define "respondent" as the person against whom
the temporary restraining order and injunction are sought and,
if the petition is granted, the restrained person.
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2.Existing law authorizes a minor under 12 who is accompanied by
a guardian ad litem to appear in court without counsel to
request or oppose a request for a protective order. (Code of
Civ. Proc. Sec. 374.)
This bill would incorporate the above-described provisions
regarding the appearance of minors to request or oppose a
civil harassment or domestic violence protective order into
those statutes.
3.Existing law allows the court to include other named family or
household members of the person to be protected in orders to
prevent domestic violence and elder or dependent adult abuse.
(Fam. Code Sec. 6320(a); Welf. & Inst. Code Sec. 15657.03(b).)
Existing law allows the court to include other named family
or household members "who reside with" the person to be
protected in orders to prevent civil harassment, workplace
violence, and postsecondary school site violence. (Code of
Civ. Proc. Secs. 527.6(c), 527.8(e), 527.85(d).)
This bill would allow the court to include other named family
or household members of the petitioner in a civil harassment,
workplace violence, or school site violence prevention order
without regard to where they reside.
4.Existing law specifies the types of orders that can be issued
in response to a request for orders in proceedings to prevent
elder and dependent adult abuse and domestic violence. (Welf.
& Inst. Code Sec. 15657.03(b); Fam. Code Sec. 6320(a).)
Existing law does not specify what types of orders can be
issued in response to a request for a civil harassment,
workplace violence, postsecondary school site violence, or
juvenile court protective order. (Code of Civ. Proc. Secs.
527.6., 527.8, 527.85; Welf. & Inst. Code Sec. 213.5.)
This bill would specify which types of orders can be issued in
response to a request for a civil harassment, workplace
violence, school site violence, or juvenile court protective
order.
5. Existing law requires the court to act on a request for a
domestic violence temporary restraining order on the same day
that the petition is filed, unless it is filed too late in the
day to permit effective review, in which case it shall be
acted upon on the next judicial business day. (Fam. Code Sec.
246.) Existing law is silent on the timeframe for a court to
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act on requests for orders to prevent civil harassment,
workplace or postsecondary school site violence, or adult or
dependent adult abuse. (Code of Civ. Proc. Secs. 527.6,
527.8, 527.85; Welf. & Inst. Code Sec. 15657.03.)
This bill would require the court to act on a request for a
temporary restraining order to prevent civil harassment,
workplace violence, or school site violence on the same day
that the petition is filed, unless it is filed too late in the
day to permit effective review, in which case it shall be
acted upon on the next judicial business day.
6. Existing law provides that the court shall hold a hearing on a
request for a domestic violence protective order within 20
days of issuing a temporary restraining order, or if good
cause appears to the court, 25 days from that date. (Fam. Code
Sec. 242.) Existing law provides that the court shall hold a
hearing on a request for a civil harassment, workplace
violence, or postsecondary school site violence prevention
order within 15 days of issuing a temporary restraining order,
or if good cause appears to the court, 21 days from that date.
(Code of Civ. Proc. Secs. 527.6(d), 527.8(f), 527.85(e).)
This bill would provide that the court shall hold a hearing on
all types of protective orders within 21 days of the date the
request for a temporary restraining order is granted or
denied, or if good cause appears, 25 days.
7. Existing law allows the defendant in a civil harassment matter
to file a "cross-complaint" in response to a petition. (Code
of Civ. Proc. Sec. 527.6(d).)
This bill would clarify that the respondent in a civil
harassment order can file a "cross-petition" rather than a
"crosscomplaint" in response to a petition.
8. Existing law provides that orders after a hearing to prevent
civil harassment, workplace violence, postsecondary school
site violence, and elder or dependent adult abuse shall have a
duration of no more than three years and that a plaintiff may
seek renewal of the orders at any time within three months
before their expiration. (Code of Civ. Proc. Secs. 527.6 (d),
527.8(f), 527.85(e).) Existing law provides that domestic
violence restraining orders shall have a duration of no more
than five years and that the orders may be renewed for either
an additional five years or permanently. (Fam. Code Sec.
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6345.)
This bill would provide that a civil harassment, workplace
violence, or postsecondary education order after hearing shall
have a duration of no more than three years and may be
renewed, upon the request of a party, for not more than three
years without a showing of further harassment or abuse since
the issuance of the original order.
This bill would provide that an elder and dependent adult
abuse restraining order after hearing shall have a duration of
no more than five years and that the orders may be renewed for
either an additional five years or permanently.
This bill would provide that, for all types of protective
orders, any request for renewal may be brought within the
three months before the expiration of the orders.
9. Existing law does not specify the procedure for reissuing a
civil harassment, workplace violence, or postsecondary
education temporary restraining order that is expiring for
failure to serve the other party.
This bill would include in the statutes on civil harassment,
workplace violence, or postsecondary school site violence
express provisions authorizing the court to reissue temporary
restraining orders that could not be served within the time
required by statute, and providing that a reissued order shall
remain in effect until the date set for the hearing on the
permanent order.
10. Existing law provides that, in cases involving domestic
violence and elder or dependent adult abuse, when the person
named in the order has not been served personally with the
order after the conclusion of the hearing, but has received
actual notice of the existence and substance of the order
through personal appearance in court to hear the terms of the
order from the court, no additional proof of service is
required for enforcement of the order. (Fam. Code Sec.
6384(a); Welf. & Inst. Code Sec. 15657.03(i)(2).)
This bill would provide that when the person named in a civil
harassment, workplace violence, postsecondary school site
violence protective order has not been served personally with
the order after the conclusion of the hearing but has received
actual notice of the existence and substance of the order
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through personal appearance in court to hear the terms of the
order from the court, no additional proof of service is
required for enforcement of the order.
11. Existing law provides that, in cases involving domestic
violence and elder or dependent adult abuse, if the person
named in a temporary restraining order is personally served
with the order and a notice of hearing with respect to a
restraining order or protective order based on the temporary
restraining order, but the person does not appear at the
hearing, either personally or by an attorney, and the terms
and conditions of the restraining order or protective order
are identical to the temporary restraining order, except for
the duration of the order, then the restraining order or
protective order may be served on the person by first-class
mail sent to that person at the person's most current address
available to the court. (Fam. Code Sec. 6384(a); Welf. &
Inst. Code Sec. 15657.03(i)(1).)
This bill would allow for mail service in a civil harassment,
workplace violence, and postsecondary school site violence
proceedings when the permanent order issued by the court is
identical to the temporary restraining order except for the
duration of the order, and the respondent has not appeared;
the amended statute will require the Judicial Council forms
for temporary orders to include notice to the respondent of
this provision.
12. Existing law requires that information from protective
orders be transmitted to the Department of Justice for entry
into its CLETS database. Existing law requires the court, in
domestic violence prevention proceedings, to transmit a copy
of the orders to law enforcement for it to enter or to enter
the order on its own. (Fam. Code Sec.
6380(a).) Existing law requires the court, in civil
harassment, workplace violence, postsecondary school site
violence, and elder and dependent adult abuse cases, to order
the plaintiffs or petitioners or their attorneys to deliver a
copy of protective orders to the law enforcement agencies
within the court's discretion as requested by the petitioner
by the close of the business day on which the orders were
granted. (Code of Civ. Proc. Secs. 527.6(h), 527.8(i),
527.85(h); Welf. & Inst. Code Sec. 1567.03(j).)
This bill would provide that, as an alternative to requiring
the court to order the
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petitioner to deliver a copy of a protective order to the law
enforcement agencies, the court may, within the court's
discretion and as requested by the petitioner, transmit a copy
to law enforcement for entry into CLETS by the close of the
business day on which the order was granted, or the court may
enter the order into CLETS itself if authorized within one
business day.
13. Existing law provides that a person subject to a protective
order shall be prohibited from owning or possessing a firearm,
and that any such prohibited persons are also prohibited from
owning, possessing, or having under his or her control any
ammunition. (Pen. Code Secs. 12021(g), 12316(b)(1).)
This bill would incorporate these prohibitions on owning,
possessing, purchasing or receiving ammunition into the
existing firearm prohibition provisions in each of the
protective order statutes.
14. Existing law provides that there is no fee for the service
of process of a civil harassment order by the sheriff or
marshal if it is based upon stalking or a credible threat of
violence, but not if it is based on unlawful violence. (Code
of Civ. Proc. Sec. 527.6(q).)
This bill would additionally provide that there is no fee for
the service of process by the sheriff or marshal of a civil
harassment order if it is based on unlawful violence.
15. Existing law authorizes the chief administrative officer of
a private postsecondary educational institution or his or her
designee to seek a temporary or permanent restraining order
for a student subject to violence or a threat of violence.
(Code of Civ. Proc. Sec. 527.85.)
This bill would add cross-references to these provisions to
other applicable statutes.
16. Existing law provides that a party seeking a domestic
violence protective order or a civil harassment restraining
order based on allegations of domestic violence may bring a
support person, and where the person is not represented by
counsel, allows the support person to sit with him or her at
the table generally reserved for the a party and the party's
attorney to provide moral and emotional support. (Code of Civ.
Proc. Sec. 527.6(l); Fam. Code Sec. 6303.)
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This bill would clarify that a party seeking a civil
harassment order may bring a support person when the order is
based on allegations of unlawful violence or credible threats
of violence and would remove the reference to domestic
violence.
This bill would also authorize a party seeking an elder and
dependent adult abuse protective order to bring a support
person to the hearing.
17. Existing law requires the court to order the clerk to
provide a petitioner for a domestic violence protective order
with five certified copies of any order issued under the DVPA.
(Fam. Code Sec. 6387.)
This bill would require the court to order the clerk to
provide up to three certified copies of any order issued under
the DVPA. (Fam. Code Sec. 6387.)
COMMENT
1. Stated need for the bill
The author states:
The protective order statutes that currently exist are very
important in protecting individuals in many different types of
cases; however, the statutes evolved in a piecemeal fashion
over a number of years. Sometimes new provisions were added
to one type of protective order that would have been equally
applicable to all the types of cases. And sometimes
procedures that were clarified or improved in one type of
proceeding were left unaddressed in other. This bill will
create greater consistency in procedures and practices,
eliminate unnecessary statutory differences, fill in
procedural gaps, clarify uncertain matters, provide
cross-references, and generally improve the statutes that
relate to protective orders.
2. Consistent terminology and definitions
Under current law, most of the protective order statutes refer
to the parties as "petitioners" and "respondents." However, a
few statutes use terminology such as "plaintiffs," "applicants,"
and "defendants." This bill would amend the statutes so that
they use the "petitioner/respondent" terminology and definitions
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uniformly.
The sponsor notes that the need for clearer definitions is
especially important in proceedings relating to elder or
dependent adult abuse, where often someone other than the abused
person is bringing the action on behalf of the person. The
proposed new definition would clarify that the "petitioner" as
used throughout the statute is the person to be protected.
This bill would further provide that in elder or dependent abuse
cases, a petition for a protective order may be brought on
behalf of the petitioner by his or her legally appointed
conservator. For the purpose of these proceedings, the term
"conservator" would be specifically defined as the legally
appointed conservator of the person or of the estate of the
petitioner, or both. This bill would also authorize an
interested state or local entity or agency to seek a protective
order.
While these provisions provide clarity in elder or dependent
abuse protective orders, they do not necessarily provide an
avenue for elders/dependent adults who have not been placed in a
conservatorship and are unable to petition on their own behalf
to swiftly obtain a protective order. For example, in financial
abuse cases, even if the elder would qualify for the appointment
of a conservator, it could potentially take up to weeks or
months to get one appointed. This delay could work towards to
the detriment of the elder/dependent adult and leave them unduly
exposed to abuse in the meantime. Although state or local
entities could intervene to seek the protective order, they
would be unlikely to do so in every case.
Accordingly, this committee may wish to consider whether this
bill should be amended to expand the individuals who have
standing to seek a protective order in elder/dependent adult
abuse cases to also include specified representatives of the
elder or dependent adult, including representatives of the elder
or dependent adult's estate, a person who acts within the power
of attorney, and a guardian ad litem.
The suggested amendment would be as follows:
Suggested Amendment
On page 54, line 38, after "conservator" insert "or a trustee
of the elder or dependent adult, an attorney-in-fact of an
elder or dependent adult who acts within the authority of the
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power of attorney, a person appointed as a guardian ad litem
for the elder or dependent adult,"
In addition, the Family Law Section of the State Bar [FLEXCOM]
write that standardizing the language in all protective order
statutes may not be appropriate. For example, the current civil
harassment protective order statute allows a litigant to file a
response to a request for a restraining order which "explains,
excuses, justifies, or denies" the allegations in the petition.
FLEXCOM states that this terminology is not appropriate for
domestic violence or elder abuse cases because it may send a
wrong message to litigants that they can "excuse" or "justify"
violence or abuse. This committee may wish to consider whether
these provisions of the bill should be stricken as follows:
Suggested Amendment
On page 32, line 34 strike ",excuses, justifies,"
On page 57, line 3 strike "excuses"
On page 57, line 4, strike "justifies,"
3. Guardians ad litem and minors' appearances
Currently, the statutes governing protective orders to prevent
civil harassment and domestic violence do not refer to the
special provisions regarding guardians ad litem applicable to
those types of cases. This bill would amend these statutes to
include cross-references to Code of Civil Procedure Section 374,
which permits a minor under 12 years of age, accompanied by a
duly appointed and acting guardian ad litem, to appear in court
without counsel for the limited purpose of requesting or
opposing a request for a temporary restraining order or an
injunction or both. This should add clarity and consistency to
the various statutes.
4. Cross-petitions v. Cross-complaints
The civil harassment statute currently states that a
"cross-complaint" to the petition for a protective order may be
filed. (Code Civ. Proc. Sec. 527.6.) This bill would instead
revise the statute to refer to a "cross-petition," which,
according to the sponsor, is less confusing and more accurate.
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5. Specification of the types of restraining orders
Some of the current protective order statutes provide a
definition of "temporary restraining order," "injunction," and
"protective order" that lists the specific types of protective
orders that the court may issue. (Welf. & Inst. Code Sec.
15657.03(b).) However, this definition does not appear in all
of the protective order statutes. This bill would insert this
definition containing specific types of protective orders into
all of the protective order statutes, thus creating consistency
among the code sections.
6. Scope of orders
Currently, all of the protective order statutes authorize courts
to issue orders protecting not only the petitioner, but also
some other persons named on the petition upon a showing of good
cause. However, there is inconsistency in how the statutes
describe the other persons who may also be included in the
protective order. For example, the Domestic Violence
Prevention Act (DVPA) and the statute to prevent elder and
dependent adult abuse refer to the additional persons as "other
named family or household members." (Fam. Code Sec. 6320; Welf.
& Inst. Code Sec. 15657.03.) In contrast, the Code of Civil
Procedure sections pertaining to civil harassment and workplace
violence refer to "other named family or household members who
reside with [the plaintiff or employee]." Thus, some of the
statutes generally refer to named family or household members,
while others contain the modifier referring to residence.
In the statutes where the phrase "who resides with" is omitted
entirely, it appears that family members who do not reside with
the petitioner may also be included in the protective order.
But in the statutes where this phrase does appear, it is unclear
whether the modifier applies only to household members or to
both family and household members. Depending on how one
interprets them, the civil harassment and workplace violence
statutes could provide protection for nonresident family
members.
This bill would eliminate the "who reside with" language from
the civil harassment, workplace violence, and school site
violence prevention statutes, thereby making them consistent
with the provisions in the DVPA and elder abuse statute.
Specifically, this bill would provide that the court, in its
discretion, may include other named family or household members
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in a protective order upon a showing of good cause, without a
regard to residence.
The Family Law Section of the State Bar writes that it does not
agree with this expanded provision and expresses concerns that
it may deprive third parties from having notice about the
restraining order and having a say in whether or not they want
the requested protection. However, there may be instances where
a person who does not reside with the petitioner would
nonetheless benefit from inclusion in the protective order.
This would vary depending on the specific facts of each case.
Further, courts would have the discretion to deny the protective
order for the third party if they do not feel there is
sufficient evidence to justify the inclusion.
7. Standardized hearing dates
Currently, the protective order statutes contain several
different timelines for hearings to be held on petitions for
protective orders. For domestic violence protective orders, the
timeframe for the hearing is within 20 days of issuing the
temporary restraining order, or if good cause appears, 25 days
from that date. (Fam. Code Sec. 242.) For a civil harassment,
workplace violence, or postsecondary school site violence
prevention order, the timeframe is within 15 days of issuing a
temporary restraining order, or if good cause appears to the
court, 21 days from that date. (Code Civ. Proc. Secs. 527.6(d),
527.8(f), 527.85(e).)
This bill would standardize the timeframes so that hearings for
protective orders in all types of cases would be held within 21
days or, if good cause exists, within 25 days from the date that
a petition for a temporary order is granted or denied.
According to the sponsor, many courts hold their restraining
order calendars on the same day each week. Thus, under the
existing 20-day requirement, the court may need to set the
hearing two weeks after the temporary restraining order is
issued. In many cases, two weeks is not sufficient time for the
petitioner to successfully serve the order on the respondent,
which will then necessitate a continuance and reissuance of the
order. By increasing the timeframe for hearings on protective
orders to 21 days, the court would be able to set the hearing at
exactly three weeks from the time the temporary restraining
order is issued. This should provide petitioners with
additional time to serve the order and potentially prevent many
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continuances and reissuances of temporary restraining orders for
failure of service.
8. Time for acting on requests for temporary orders
Currently, an ex parte temporary restraining order in domestic
violence cases must 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, in which
case the order must be granted or denied on the next business
day. (Fam. Code Sec. 246.) However, statutes governing
protective orders in other types of cases are silent on the
timeframe for granting or denying these requests.
According to the sponsor, courts generally issue orders in those
proceedings within the same time frame as in domestic violence
cases. Thus, in order to eliminate ambiguity and standardize
practices, this bill would amend all protective order statutes
to prescribe the same timeframes for the grant or denial of
temporary restraining orders as those contained in Family Code
Section 246.
9. Duration of orders and length of renewal of orders
Current law provides that orders after a hearing to prevent
civil harassment, workplace violence, postsecondary school site
violence, and elder or dependent adult abuse shall have a
duration of no more than three years and that a plaintiff may
seek renewal of the orders at any time within three months
before their expiration. (Code Civ. Proc. Secs. 527.6 (d),
527.8(f), 527.85(e).) However, these statutes do not specify
for how long the orders may be renewed. Domestic violence
orders have a duration of no more than five years and may be
renewed for an additional five years or permanently. (Fam. Code
Sec. 6345.)
This bill would provide that a civil harassment, workplace
violence, or postsecondary education order issued after a
hearing shall have a duration of no more than three years and
may be renewed, upon the request of a party, for not more than
three years without a showing of further harassment or abuse
since the issuance of the original order. These provisions are
similar to those contained in Family Code Section 6345 for
domestic violence orders, with the exception of the three-year
time frame.
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This bill would also increase the duration of elder and
dependent adult abuse restraining orders from up to three years
to up to five years, and would provide that they may be renewed
for either an additional five years or permanently. Permitting
courts to issue longer orders in elder/dependent adult abuse
cases is arguably as compelling as in domestic violence cases
because in both cases there is potential for significant abuse
without a protective order in place. Depending on the
circumstances, an order with a duration of five years may be
appropriate for an elder or dependent adult. The court would
still have the discretion to issue an order with a shorter
duration if warranted.
Finally, this bill would provide that, for all types of
protective orders, any request for renewal may be brought within
the three months before the expiration of the orders.
These provisions are based on the timeframe established in Code
of Civil Procedure Section 527.6(d) for civil harassment orders.
10.Reissuance of temporary orders
Current law does not specify the procedure for reissuing a civil
harassment, workplace violence, or postsecondary education
temporary restraining order that is expiring for failure to
serve the other party. This bill would expressly provide that,
in these cases, the court may reissue temporary restraining
orders that could not be served within the time required by
statute. This bill would further provide that a reissued order
in these cases shall remain in effect until the date set for the
hearing on the permanent order.
With these changes, a court would be authorized to reissue a
temporary restraining order and continue the hearing to allow
the petitioner more time to successfully complete service.
11.Service of orders
The protective order statute for domestic violence and
elder/dependent adult abuse cases explicitly address the
situation in which a person named in the order has not been
served personally with the order after the hearing but has
received actual notice of the existence and substance of the
order through personal appearance in court. In these
circumstances, no additional proof of service is required for
enforcement of the order. (Welf. & Inst. Code Sec.
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15657.03(i)(2); Fam. Code Sec. 6384(a).) The other protective
order statutes are silent on this issue.
This bill would provide that when the person named in a civil
harassment, workplace violence, postsecondary school site
violence protective order has not been served personally with
the order after the conclusion of the hearing but has received
actual notice of the existence and substance of the order
through personal appearance in court to hear the terms of the
order from the court, no additional proof of service is required
for enforcement of the order. This would make all of the
protective order statutes consistent.
Also, some of the protective orders address a situation where
the person named in a temporary restraining order is personally
served with the order and a notice of hearing with respect to a
restraining order or protective order based on the temporary
restraining order, but the person does not appear at the
hearing. In this situation, if the terms and conditions of the
restraining order or protective order are identical to the
temporary restraining order, except for the duration of the
order, then the restraining order or protective order may be
served on the person by first-class mail sent to the person's
most current address available to the court. (Welf. & Inst.
Code Sec. 15657.03(i)(1); Fam. Code Sec. 6384(a).) This bill
would include these provisions into all of the protective order
statutes.
Finally, the statutes implementing the above-described
provisions require the Judicial Council to develop a form for
temporary orders which contains a statement providing notice
about these provisions. This bill would revise the statutory
notice so that it is written more clearly, and included in all
applicable statutes.
12.Entry of orders into CLETS
Protective order statutes currently provide various ways for
protective orders and
proof of service of those orders to be entered into the
California Law Enforcement Telecommunications System (CLETS).
For example, criminal protective orders and domestic violence
protective orders must be transmitted to law enforcement by the
court or its designee within one business day by either (1)
transmitting a copy of the order to a local law enforcement
agency authorized to enter orders into CLETS or, (2) with
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Department of Justice approval, entering the orders into CLETS
directly. (Fam. Code Sec. 6380(a).) The Department of Justice
must also be notified of other types of protective orders. The
content of information about those orders, but not the method of
transmission of the information, is specified. (Fam. Code Sec.
6380(b).)
The protective order statutes outside the criminal and domestic
violence areas provide that the court shall order the plaintiff
or the plaintiff's attorney to deliver copies of orders to law
enforcement. (Code Civ. Proc. Secs. 527.6(h) and 527.8(i);
Welf. & Inst. Code Secs. 213.5 (g), 15657.03(j).) These
provisions reflect historical practices rather than the more
recent authorized modes of transmission.
This bill would provide that, as an alternative to requiring the
court to order the
petitioner to deliver a copy of a protective order to the law
enforcement agencies, the court may, within the court's
discretion and as requested by the petitioner, (1) transmit a
copy to law enforcement for entry into CLETS by the close of the
business day on which the order was granted, or (2) the court
may enter the order into CLETS itself if authorized within one
business day. These changes would modernize the statutes to
allow for the more efficient entry of protective orders into
CLETS whenever possible, while still allowing the courts the
option of ordering the parties or their attorneys to provide
copies of orders to law enforcement.
This bill would additionally create conformity in the procedures
for entering juvenile protective orders into CLETS to those
currently in place for criminal and domestic violence cases.
13.Certified copies of orders
Under current law, the court is required to order the clerk to
provide the petitioner for a domestic violence protective order
with five certified copies of any order issued under the DVPA.
(Fam. Code Sec. 6387.) Historically, some of these copies have
been provided to law enforcement for entry into CLETS. However,
because courts are authorized to transmit the orders directly to
law enforcement or enter the order into CLETS themselves, there
no longer appears to be a need for the petitioner to have five
certified copies of the order. Therefore, this bill would
instead provide that the petitioner shall be provided up to
three certified copies of any order.
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14.References to ammunition
Current law provides that a person subject to a protective order
shall be prohibited from owning or possessing a firearm, and
that any such prohibited persons are also prohibited from
owning, possessing, or having under his or her control any
ammunition. (Pen. Code Secs. 12021(g), 12316(b)(1).) This bill
would incorporate these prohibitions on owning, possessing,
purchasing or receiving ammunition into the existing firearm
prohibition provisions in each of the protective order statutes.
This should provide more clarity for individuals on which
restrictions regarding possession of firearms are applicable.
15.Support persons
The current civil harassment and domestic violence statutes
provide that a support person may accompany the petitioner in a
protective order proceeding and that, if the party is not
represented by an attorney, the support person may sit at the
table that is generally reserved for the party and the party's
attorney. The statutes further provide that the support person
is present to provide moral and emotional support for the
alleged victim and gives the court discretion to remove the
support person from the courtroom if the court believes that
he/she is prompting, swaying, or influencing the party. (Code
Civ. Proc. Sec. 527.6(f); Fam. Code Sec. 6303.)
Because these provisions appear to be applicable to proceedings
involving claims of elder or dependent adult abuse, this bill
would add similar language to statutes governing proceedings
relating to those cases.
16.Free service of process by a sheriff or marshal
Under existing law, there is no fee for the service of process
of a civil harassment order by the sheriff or marshal if it is
based upon stalking or a credible threat of violence, but not if
it is based on unlawful violence. (Code Civ. Proc. Sec.
527.6(q).) There does not appear to be a policy basis for
providing free service of process in instances of stalking or
credible threats of violence, but not for orders based on
unlawful violence, which is defined as any assault, battery, or
stalking.
This bill would provide that there is no fee for the service of
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process by the sheriff or marshal of a civil harassment order if
it is based on unlawful violence.
17.Cross references to SB 188
Last year, SB 188 (Runner, Chapter 566, Statutes of 2009) was
enacted, which authorized chief administrative officers at
private postsecondary institutions or persons designated by them
to request temporary restraining orders and injunctions to
protect students who have suffered a credible threat of
violence. (Code Civ. Proc. Sec. 527.85.) SB 188 was closely
modeled after the workplace violence protective order statute.
This bill would add cross-references to the code section created
by SB 188 to other protective order statutes.
18.Conflicting protective orders/Opposition
Current law provides that when a criminal protective order
restrains a defendant charged with a crime of domestic violence,
that order has enforcement precedence over any conflicting civil
court order, unless the conflicting order is an emergency
protective order that is more protective than the criminal
protective order. (Pen. Code Sec. 136.2.)
This bill would provide that when any two protective orders are
in conflict and involve the same parties, the orders shall be
enforced in the manner that provides the greatest protection to
the protected party, and the most restrictions to the restricted
party. According to the author's office, these provisions are
intended to ensure that a protected person is not left
vulnerable as a result of the issuance of a less protective
criminal protective order.
The Governor's Office of Planning and Research (OPR) is opposed
to these provisions of the bill and asserts that it would shift
the burden to law enforcement to fashion together various orders
and enforce them in a manner which provides the most protection
and restriction. OPR further asserts that this will create more
problems then guidance for peace officers.
The author has offered amendments to remove these provisions
from the bill and stated that she is committed to working with
OPR to more clearly define these specific provisions of the bill
in order to make the enforcement responsibility less burdensome.
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The author's amendments would be as follows:
On page 20, strike lines 21 to 34 inclusive
On page 45, strike lines 31 to 40 inclusive
Strike pages 46-48
On page 49, strike lines 1 to 16 inclusive
19. Additional technical amendments
The author's office has offered the following additional
technical amendments:
On page 58, line 15, strike "three" and insert "five"
On page 62 line 9, strike "while the protective order is in
effect" and insert "while subject to a protective order issued
under this section."
Support : Family Law Section of the State Bar (if amended);
Peace Officers Research Association of California
Opposition : Governor's Office of Planning and Research (unless
amended)
HISTORY
Source : Judicial Council
Related Pending Legislation : None Known
Prior Legislation : SB 188 (Runner, Chapter 566, Statutes of
2009) authorized chief administrative officers at private
postsecondary institutions or persons designated by them to
request temporary restraining orders and injunctions to protect
students who have suffered a credible threat of violence.
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 74, Noes 0)
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