BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 188
Senator Runner
As Introduced
Hearing Date: May 12, 2009
Code of Civil Procedure
KB:jd
SUBJECT
Temporary restraining orders: schools
DESCRIPTION
This bill would authorize educational sites, such as schools,
colleges, universities, and technical institutes, whose
student(s) has suffered unlawful violence or a credible threat
of unlawful violence from any individual, that can be reasonably
construed to be carried out or have been carried out at the
educational site, to seek a temporary restraining order and an
injunction on behalf of the student(s).
BACKGROUND
This bill was introduced at the request of a private proprietary
postsecondary educational institution that sought a restraining
order against a former student to prohibit that person from
entering the campus, but learned that a separate temporary
restraining order would be required for each student and staff
of that campus. According to the institution, it would have had
to seek about 375 restraining orders to accomplish its goal of
prohibiting the former student from entering the campus.
SB 188, sponsored by the Western Beauty Institute, seeks to
remedy this problem by modifying current law which allows
employers to seek temporary restraining orders for the purposes
of preventing workplace violence to also apply to schools.
This bill was approved by the Senate Committee on Education on
April 29, 2009.
(more)
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CHANGES TO EXISTING LAW
Existing law authorizes any employer, whose employee has
suffered unlawful violence or a credible threat of violence from
any individual, that can reasonably be construed to be carried
out or to have been carried out at the workplace, to seek a
temporary restraining order and an injunction on behalf of the
employee and, at the discretion of the court, other employees,
as specified. (Code of Civ. Proc. Sec. 527.8.)
Existing law defines "employer" as persons engaged in any
business or enterprise in this state that has one or more
persons in service under any appointment, contract of hire, or
apprenticeship, express or implied, oral or written,
irrespective of whether the person is the owner of the business
or is operating on a concessionaire or other basis. Existing
law also includes within the definition of "employer" a federal
agency, the state, a state agency, a city, a county, or
district, and a private, public, or quasi-public corporation, or
any public agency thereof or therein. (Lab. Code Sec. 350; Code
of Civ. Pro. Sec. 527.8.)
Existing law defines "employee" as every person, including
aliens and minors, rendering actual service in any business for
an employer, whether gratuitously or for wages or pay, whether
the wages or pay are measured by the standard of time, piece,
task, commission, or other method of calculation, and whether
the service is rendered on a commission, concessionaire, or
other basis. Existing law also includes within the definition
of "employee" the members of boards of directors of private,
public, and quasi-public corporations and elected and appointed
public officers, as well as a volunteer or independent
contractor who performs services for the employer at the
employer's worksite. (Lab. Code Sec. 350; Code of Civ. Pro.
Sec. 527.8.)
This bill would modify the definition of employer to include an
educational site, such as a school, college, university, or
technical institute.
This bill would also change the definition of employee to
include students at those educational sites.
COMMENT
1. Stated need for the bill
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The author states:
While current law gives courts the discretion to issue a
restraining order to protect an individual student at an
educational facility, there is not a mechanism to extend a
restraining order to encompass an entire campus including,
students, volunteers, and staff.
In other words, if an individual poses a threat to a campus
with 400 students and staff, the court must issue 400 separate
restraining orders instead of one blanket restraining order.
The author asserts that SB 188 is needed to protect students,
volunteers, and staff at educational facilities from violence.
2. The general duty to protect students
In California, students have the an inalienable right to attend
safe, secure, and peaceful campuses in order to promote
learning, and school districts have an affirmative duty to take
all reasonable steps to protect its students. (Cal. Const.,
art. I, sec. 28, subd.(c).; Ed. Code Sec. 32261; Rodriguez v.
Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707,
714-715.) The standard of care imposed upon school personnel in
carrying out this duty is the degree of care "which a person of
ordinary prudence, charged with [comparable] duties, would
exercise under the same circumstances." (Hoyem v. Manhattan
Beach City School District, (1978) 22 Cal.3d 508, 513.) School
districts and their individual employees may be liable for
injuries to students resulting from foreseeable assaults by
non-students, and third parties. (Leger v. Stockton Unified
School Dist. (1988) 202 Cal.App.3d 1448.) Even if there have
been no prior injuries or acts of violence, if school
authorities are aware of threats of violence, they must take
reasonable preventive measures. (Id. at 1460.)
Postsecondary educational institutions, such as colleges,
universities, and technical institutes, do not have the same
duty to protect and supervise student as do schools providing
K-12 education. This is in part due to the fact that attendance
at a postsecondary educational institution is not compulsory,
rather adult college students attend school and participate in
school activities voluntarily. (See Crow v. State of
California, (1990) 222 Cal.App.3d 192, 208-209.) Furthermore,
since college administrators have recognized the students'
rights to control and regulate their own lives, colleges and
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universities may no longer be charged with a general duty of
care to supervise student activities. (Id.; see also Baldwin v.
Zoradi (1981) 123 Cal.App.3d 275, 287-291.) However,
postsecondary educational institutions may still be found liable
under general tort principles if a court finds that the school
owed a reasonable duty of care to a student, and failed to carry
out that duty.
3.Current options for schools and postsecondary educational
institutions to address instances of trespass and disruptive
behavior
There are several options in current law that schools, colleges,
and postsecondary educational institutions may use to protect
students and staff from a person making threats of violence,
harassing students or staff, trespassing, or engaging in other
disruptive behavior. Below is a general overview of these
options:
Every student or employee who has been suspended or dismissed
for disrupting the orderly operation of the campus or
facility, and as a condition of the suspension or dismissal
has been denied access to the campus or facility, who
willfully and knowingly enters the campus or facility is
guilty of a misdemeanor. (Pen. Code Sec. 626.2.)
The chief administrative officer may notify a person that
consent to remain on the campus or facility has been withdrawn
whenever there is reasonable cause to believe that such person
has willfully disrupted the orderly operation of such campus
or facility. (Pen. Code Sec. 626.4.)
A person who willfully and knowingly enters or remains on
campus or in the facility during the period for which consent
has been withdrawn is guilty of a misdemeanor. (Id.)
A chief administrative official may also direct a person who
is interfering with the peaceful conduct of the activities of
the campus or facility to leave the premises. (Pen. Code
Secs. 626.6, 626.7.) If that person fails to do so or
willfully and knowingly reenters the campus or facility within
seven days, he or she is guilty of a misdemeanor. (Id.)
Any person who comes into any school building or near any
school ground without lawful business and whose presence or
acts interfere with the peaceful conduct of the activities of
the school is guilty of a misdemeanor if the person remains
after being asked to leave, reenters within seven days, or has
otherwise established a continued pattern of unauthorized
entry. (Pen. Code Sec. 626.8.)
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Every person who, by physical force and with the intent to
prevent attendance or instruction, willfully obstructs or
attempts to obstruct any student or teacher seeking to attend
or instruct classes at any of the campuses or facilities of
the University of California, California State University, or
a community college district shall be punished by a fine of up
to $500, by imprisonment in a county jail for up to one year,
or both. (Pen. Code Sec. 602.10.)
1.Need for a civil remedy for schools to address violence on
campus?
Students acting on their own, or through a parent or guardian,
may already seek an injunction and temporary restraining order
to prevent harassment pursuant to Code of Civil Procedure
Section 527.6. However, the options currently available to a
school with respect to addressing on-campus disruptions and
violence seem to be limited to criminal penalties based on a
person's trespass or unauthorized presence on a campus or
facility. This bill is distinct in that it would provide a
civil remedy for schools to address the risk of violence to
students on campus.
Essentially, this bill would enable a school to petition for an
injunction and a temporary restraining order on behalf of a
student who has suffered from unlawful violence or a credible
threat of violence from any individual. The temporary
restraining order may be granted upon the filing of a petition
for injunction if, to the satisfaction of the court, there is
reasonable proof that a student has suffered unlawful violence
or a credible threat of violence, and that great or irreparable
harm would result to the student. The temporary restraining
order could last up to 15 days, at which time a hearing would be
held to review the petition for injunction. If a judge
determines that there is clear and convincing evidence that the
defendant engaged in unlawful violence or made a credible threat
of violence, an injunction prohibiting such further conduct may
be issued for up to a period of three years. Any willful
disobedience of a temporary restraining order is a misdemeanor
and is punishable by incarceration and/or fines. (Pen. Code
Sec. 273.6.)
While this bill would arguably provide schools with another
means to reduce the risk of violence to their students, in light
of the criminal penalties already in place, and the ability of
individual students to obtain injunctions against harassment,
this committee may wish to further inquire as to the actual need
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for this bill. For example, have there been other instances,
aside from the sponsor's experience, where schools tried
unsuccessfully to obtain restraining orders on behalf of their
students? Have there been instances where the ability to obtain
restraining orders would have prevented or decreased the risk of
on-campus violence? The committee may also wish to inquire as
to why the current options available to schools are not
sufficient.
2.Suggested amendment to create a separate code section
pertaining to schools and postsecondary educational
institutions
This bill seeks to give schools the same authority that
employers currently possess to obtain temporary restraining
orders on behalf of employees who have suffered from or have
been threatened with acts of violence. As such, this bill would
modify the current definitions of "employer" to include "an
educational site" and, "employee" to include "students and
staff" at an "educational site."
Current public policy requires employers to provide a safe and
secure workplace, and take reasonable steps to address credible
threats of violence in the workplace. (See Lab. Code Sec. 6900
et seq. (standards for workplace safety); Code of Civ. Proc.
Sec. 527.8.) However, the duties of schools with respect to
their students are not strictly analogous to those of an
employer to his or her employees, particularly in a K-12 school
setting. The employer-employee relationship invokes an entire
body of case law that may not be appropriate or relevant when
applied to cases involving schools and students. Also, it is
important to note that schools, colleges, universities, and
other postsecondary education institutions are already
considered "employers" under current law and may petition for an
injunction and temporary restraining order on behalf of
teachers, administrators, or other staff who are employed at the
school. (Code of Civ. Proc. Sec. 527.8.) Therefore, this
bill's modifications to current statutory definitions would be
redundant and potentially unclear.
In order to avoid confusion, and to provide clear direction for
the courts, this committee may wish to consider whether this
bill should be amended to create a separate code section
governing the ability of schools and postsecondary educational
institutions to obtain injunctions and temporary restraining
orders on behalf of students. The separate code section would
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largely retain the same standards and procedures as those in
Code of Civil Procedure Section 527.8, but would contain
specific definitions for schools and postsecondary educational
institutions.
Further, the current version of the bill does not define
"educational site," which can be broadly interpreted as being
any location where an activity of some educational value (not
defined) takes place. Accordingly, this committee may wish to
consider whether "educational site" should be removed from the
bill, and replaced with more concise definitions.
The suggested amendment would be to add a new section to the
Code of Civil Procedure as follows:
On page 1, line 1, strike "527.8" and insert "527.85"
On page 1, strike lines 3-6 inclusive and insert:
"(a) Any chief administrative officer of a school or a
postsecondary educational institution, or an officer or employee
designated by the chief administrative officer to maintain order
on the school campus or facility, whose student has suffered
unlawful violence or a credible threat of violence from any
individual, that can reasonably be construed to be carried out
or to have been carried out at the school campus or facility,
may seek a temporary restraining order and an injunction, on
behalf of the student and, at the discretion of the court, any
number of other students at the campus or facility.
(b) For the purposes of this section:
(1) "Unlawful violence" is any assault or battery, or stalking
as prohibited in Section 646.9 of the Penal Code, but shall not
include lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable
person in fear for his or her safety, or the safety of his or
her immediate family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing
a continuity of purpose, including following or stalking a
student to or from school; entering the school campus or
facility; following a student during school hours; making
telephone calls to a student; or sending correspondence to a
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student by any means, including, but not limited to, the use of
the public or private mails, interoffice mail, fax, or computer
e-mail.
(4) "Chief Administrative Officer" means the principal,
president, or highest ranking official of the school or the
postsecondary educational institution.
(5) "School" means any public or private elementary school,
junior high school, four-year high school, senior high school,
adult school or any branch thereof, opportunity school,
continuation high school, regional occupational center, evening
high school, or technical school or any other place if a teacher
and one or more pupils are required to be at that place in
connection with assigned school activities.
(6) "Postsecondary educational institution" means a public or
private institution of vocational, professional, or
postsecondary education; the governing board of a community
college district; the Regents of the University of California;
or the Trustees of the California State University.
(c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
(d) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in
accordance with subdivision (a) of Section 527, if the plaintiff
also files an affidavit that, to the satisfaction of the court,
shows reasonable proof that a student has suffered unlawful
violence or a credible threat of violence by the defendant, and
that great or irreparable harm would result to the student. In
the discretion of the court, and on a showing of good cause, a
temporary restraining order or injunction issued under this
section may include other named family or household members who
reside with the student, or other students at the campus or
facility.
A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 15 days, unless otherwise modified or terminated by the
court.
(e) Within 15 days of the filing of the petition, a hearing
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shall be held on the petition for the injunction. The defendant
may file a response that explains, excuses, justifies, or denies
the alleged unlawful violence or credible threats of violence or
may file a cross-complaint under this section. At the hearing,
the judge shall receive any testimony that is relevant and may
make an independent inquiry. Moreover, if the defendant is a
current student of the entity requesting the injunction, the
judge shall receive evidence concerning the school's or
postsecondary educational institution's decision to retain,
terminate, or otherwise discipline the defendant. If the judge
finds by clear and convincing evidence that the defendant
engaged in unlawful violence or made a credible threat of
violence, an injunction shall issue prohibiting further unlawful
violence or threats of violence. An injunction issued pursuant
to this section shall have a duration of not more than three
years. At any time within the three months before the
expiration of the injunction, the plaintiff may apply for a
renewal of the injunction by filing a new petition for an
injunction under this section.
(f) This section does not preclude either party from
representation by private counsel or from appearing on his or
her own behalf.
(g) Upon filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of
the petition, temporary restraining order, if any, and notice of
hearing of the petition. Service shall be made at least five
days before the hearing. The court may, for good cause, on
motion of the plaintiff or on its own motion, shorten the time
for service on the defendant.
(h) (1) The court shall order the plaintiff or the attorney for
the plaintiff to deliver a copy of each temporary restraining
order or injunction, or modification or termination thereof,
granted under this section, by the close of the business day on
which the order was granted, to the law enforcement agencies
within the court's discretion as are requested by the plaintiff.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these
orders to law enforcement officers responding to the scene of
reported unlawful violence or a credible threat of violence.
(2) At the request of the plaintiff, an order issued under this
section shall be served on the defendant, regardless of whether
the defendant has been taken into custody, by any law
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enforcement officer who is present at the scene of reported
unlawful violence or a credible threat of violence involving the
parties to the proceedings. The plaintiff shall provide the
officer with an endorsed copy of the order and proof of service
that the officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a
protective order has been issued under this section, or that a
person who has been taken into custody is the subject of an
order, if the plaintiff or the protected person cannot produce
an endorsed copy of the order, a law enforcement officer shall
immediately attempt to verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall
immediately notify the defendant of the terms of the order and
obtain the defendant's address. The law enforcement officer
shall at that time also enforce the order, but may not arrest or
take the defendant into custody for acts in violation of the
order that were committed prior to the verbal notice of the
terms and conditions of the order. The law enforcement
officer's verbal notice of the terms of the order shall
constitute service of the order and constitutes sufficient
notice for the purposes of this section and for the purposes of
Section 273.6 and subdivision (g) of Section 12021 of the Penal
Code. The plaintiff shall mail an endorsed copy of the order to
the defendant's mailing address provided to the law enforcement
officer within one business day of the reported incident of
unlawful violence or a credible threat of violence at which a
verbal notice of the terms of the order was provided by a law
enforcement officer.
(i) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective
order issued under this section to relinquish any firearms he or
she owns or possesses pursuant to Section 527.9.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm while the protective
order is in effect is punishable pursuant to subdivision (g) of
Section 12021 of the Penal Code.
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(j) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable
pursuant to Section 273.6 of the Penal Code.
(k) Nothing in this section may be construed as expanding,
diminishing, altering, or modifying the duty, if any, of a
school or postsecondary educational institution to provide a
safe environment for students and other persons.
(l) The Judicial Council shall develop forms, instructions, and
rules for scheduling of hearings and other procedures
established pursuant to this section. The forms for the petition
and response shall be simple and concise, and their use by
parties in actions brought pursuant to this section shall be
mandatory.
(m) A temporary restraining order or injunction relating to
harassment or domestic violence issued by a court pursuant to
this section shall be issued on forms adopted by the Judicial
Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section
6380 of the Family Code. However, the fact that an order issued
by a court pursuant to this section was not issued on forms
adopted by the Judicial Council and approved by the Department
of Justice shall not, in and of itself, make the order
unenforceable.
(n) Information on any temporary restraining order or injunction
relating to harassment or domestic violence issued by a court
pursuant to this section shall be transmitted to the Department
of Justice in accordance with subdivision (b) of Section 6380 of
the Family Code.
(o) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against a student of
the petitioner, or stalked the student, or acted or spoken in
any other manner that has placed the student in reasonable fear
of violence, and that seeks a protective or restraining order or
injunction restraining stalking or future violence or threats of
violence, in any action brought pursuant to this section. No
fee shall be paid for a subpoena filed in connection with a
petition alleging these acts. No fee shall be paid for filing a
response to a petition alleging these acts.
(p) (1) Subject to paragraph (4) of subdivision (b) of Section
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6103.2 of the Government Code, there shall be no fee for the
service of process of a temporary restraining order or
injunction to be issued pursuant to this section if either of
the following conditions apply:
(A) The temporary restraining order or injunction issued
pursuant to this section is based upon stalking, as prohibited
by Section 646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued
pursuant to this section is based upon a credible threat of
violence.
(2) The Judicial Council shall prepare and develop application
forms for applicants who wish to avail themselves of the
services described in this subdivision."
Strike pages 2-7
Support : Los Angeles Unified School District; San Francisco
Unified School District; California Communities United Institute
Opposition : None Known
HISTORY
Source : Western Beauty Institute
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote : Senate Education Committee (Ayes 9, Noes 0)
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