AB 825 1999

ftp://leginfo.public.ca.gov/pub/99-00/bill/asm/ab_0801-0850/ab_825_bill_19991010_chaptered.pdf

Assembly Bill No. 825

CHAPTER 661

An act to amend Sections 527.6 and 527.8 of the Code of Civil

Procedure, to amend Sections 145, 6221, 6380, 6380.5, 6381, and 6383

of the Family Code, to amend Sections 136.2, 836, 13701, and 13711 of

the Penal Code, and to amend Section 213.5 of the Welfare and

Institutions Code, relating to domestic violence.

[Approved by Governor October 6, 1999. Filed

with Secretary of State October 10, 1999.]

LEGISLATIVE COUNSEL’S DIGEST

AB 825, Keeley. Domestic violence: protective and restraining

orders.

(1) Existing law requires the Department of Justice to maintain a

Domestic Violence Protective Order Registry, as specified.

This bill would rename that registry the Domestic Violence

Restraining Order System, and require forms for certain protective

and restraining orders to be adopted by the Judicial Council and

approved by the Department of Justice. The bill would provide that

only protective and restraining orders on these forms may be

transmitted to the Department of Justice, except as specified. The

bill, however, would also provide that a protective or restraining

order issued by a court that is not on the specified forms would not

be, in and of itself, unenforceable. The bill would also make clarifying

changes regarding the validity and enforceability of protective and

restraining orders issued by courts other than the courts of this state.

The bill would impose a state-mandated local program by

requiring specified protective and restraining orders to be issued

only on these forms.

(2) The bill would incorporate additional changes to Section 6380

of the Family Code made by this bill and AB 59, to take effect only

if this bill and AB 59 are both enacted and this bill is enacted last.

(3) The bill would incorporate additional changes to Section

6380.5 of the Family Code, made by this bill and SB 218, to take effect

only if this bill and SB 218 are both enacted and this bill is enacted last.

(4) The bill would incorporate additional changes to Section 836

of the Penal Code made by this bill and SB 218, to take effect only if

this bill and SB 218 are both enacted and this bill is enacted last.

(5) The bill would incorporate additional changes to Section 213.5

of the Welfare and Institutions Code, made by this bill and AB 1671,

to take effect only if this bill and AB 1671 are both enacted and this

bill is enacted last.

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(6) The California Constitution requires the state to reimburse

local agencies and school districts for certain costs mandated by the

state. Statutory provisions establish procedures for making that

reimbursement, including the creation of a State Mandates Claims

Fund to pay the costs of mandates that do not exceed $1,000,000

statewide and other procedures for claims whose statewide costs

exceed $1,000,000.

This bill would provide that, if the Commission on State Mandates

determines that the bill contains costs mandated by the state,

reimbursement for those costs shall be made pursuant to these

statutory provisions.

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

SECTION 1. Section 527.6 of the Code of Civil Procedure is

amended to read:

527.6. (a) A person who has suffered harassment as defined in

subdivision (b) may seek a temporary restraining order and an

injunction prohibiting harassment as provided in this section.

(b) For the purposes of this section, ‘‘harassment’’ is unlawful

violence, a credible threat of violence, or a knowing and willful

course of conduct directed at a specific person that seriously alarms,

annoys, or harasses the person, and that serves no legitimate purpose.

The course of conduct must be such as would cause a reasonable

person to suffer substantial emotional distress, and must actually

cause substantial emotional distress to the plaintiff.

As used in this subdivision:

(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 an individual,

making harassing telephone calls to an individual, or sending

harassing correspondence to an individual by any means, including,

but not limited to, the use of public or private mails, interoffice mail,

fax, or computer e-mail. Constitutionally protected activity is not

included within the meaning of ‘‘course of conduct.’’

plaintiff may obtain a temporary restraining order in accordance

with Section 527, except to the extent this section provides a rule that

is inconsistent. A temporary restraining order may be issued with or

without notice upon an affidavit that, to the satisfaction of the court,

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shows reasonable proof of harassment of the plaintiff by the

defendant, and that great or irreparable harm would result to the

plaintiff. In the discretion of the court, and on a showing of good

cause, a temporary restraining order issued under this section may

include other named family or household members who reside with

the plaintiff. A temporary restraining order issued under this section

shall remain in effect, at the court’s discretion, for a period not to

exceed 15 days, or, if the court extends the time for hearing under

subdivision (d), not to exceed 22 days, unless otherwise modified or

terminated by the court.

(d) Within 15 days, or, if good cause appears to the court, 22 days

from the date the temporary restraining order is issued, a hearing

shall be held on the petition for the injunction. The defendant may

file a response that explains, excuses, justifies, or denies the alleged

harassment 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. If the judge finds by clear and

convincing evidence that unlawful harassment exists, an injunction

shall issue prohibiting the harassment. 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.

(e) Nothing in this section shall preclude either party from

representation by private counsel or from appearing on the party’s

own behalf.

(f) In a proceeding under this section where there are allegations

or threats of domestic violence, a support person may accompany a

party in court and, where the party is not represented by an attorney,

may sit with the party at the table that is generally reserved for the

party and the party’s attorney. The support person is present to

provide moral and emotional support for a person who alleges he or

she is a victim of domestic violence. The support person is not present

as a legal adviser and shall not give legal advice. The support person

shall assist the person who alleges he or she is a victim of domestic

violence in feeling more confident that he or she will not be injured

or threatened by the other party during the proceedings where the

person who alleges he or she is a victim of domestic violence and the

other party must be present in close proximity. Nothing in this

subdivision precludes the court from exercising its discretion to

remove the support person from the courtroom if the court believes

the support person is prompting, swaying, or influencing the party

assisted by the support person.

(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.

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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) 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 harassment.

An order issued under this section shall, on request of the plaintiff,

be served on the defendant, whether or not the defendant has been

taken into custody, by any law enforcement officer who is present at

the scene of reported harassment involving the parties to the

proceeding. The plaintiff shall provide the officer with an endorsed

copy of the order and a proof of service that the officer shall complete

and send to the issuing court.

Upon receiving information at the scene of an incident of

harassment 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 protected person cannot produce a certified copy of the

order, a law enforcement officer shall immediately attempt to verify

the existence of the order.

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 shall at that time also

enforce the order. Verbal notice of the terms of the order shall

constitute service of the order and is 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.

(i) The prevailing party in any action brought under this section

may be awarded court costs and attorney’s fees, if any.

(j) Any willful disobedience of any temporary restraining order or

injunction granted under this section is punishable pursuant to

Section 273.6 of the Penal Code.

(k) This section does not apply to any action or proceeding

covered by Title 1.6C (commencing with Section 1788) of the Civil

Code or by Division 10 (commencing with Section 6200) of the

Family Code. Nothing in this section shall preclude a plaintiff’s right

to use other existing civil remedies.

(l) The Judicial Council shall promulgate forms and instructions

therefor, and rules for service of process, scheduling of hearings, and

any other matters required by this section. The petition and response

forms shall be simple and concise.

(m) A temporary restraining order or injunction relating to

harassment or domestic violence issued by a court pursuant to this

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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.

SEC. 2. Section 527.8 of the Code of Civil Procedure is amended

to read:

527.8. (a) 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, may seek a temporary restraining order and an

injunction on behalf of the employee prohibiting further unlawful

violence or threats of violence by that individual.

(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 an employee to

or from the place of work; entering the workplace; following an

employee during hours of employment; making telephone calls to an

employee; or sending correspondence to an employee by any means,

including, but not limited to, the use of the public or private mails,

interoffice mail, fax, or computer e-mail.

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) For purposes of this section, the terms ‘‘employer’’ and

‘‘employee’’ mean persons defined in Section 350 of the Labor Code.

The term ‘‘employer’’ also includes a federal agency, the state, a state

agency, a city, county, or district, and a private, public, or

quasi-public corporation, or any public agency thereof or therein.

The term ‘‘employee’’ also includes the members of boards of

directors of private, public, and quasi-public corporations and

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elected and appointed public officers. For purposes of this section

only, the term ‘‘employee’’ also includes a volunteer or independent

contractor who performs services for the employer at the employer’s

worksite.

(e) 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 an

employee has suffered unlawful violence or a credible threat of

violence by the defendant, and that great or irreparable harm would

result to an employee. In the discretion of the court, and on a showing

of good cause, a temporary restraining order issued under this section

may include other named family or household members who reside

with the employee.

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.

(f) Within 15 days of the filing of the petition, a hearing 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 employee of the

entity requesting the injunction, the judge shall receive evidence

concerning the employer’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.

(g) Nothing in this section shall preclude either party from

representation by private counsel or from appearing on his or her

own behalf.

(h) 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.

(i) 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

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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.

(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 shall be construed as expanding,

diminishing, altering, or modifying the duty, if any, of an employer

to provide a safe workplace for employees 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.

(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.

SEC. 3. Section 145 of the Family Code is amended to read:

145. ‘‘State’’ means a state of the United States, the District of

Columbia, or a commonwealth, territory, or insular possession

subject to the jurisdiction of the United States.

SEC. 4. Section 6221 of the Family Code is amended to read:

6221. (a) Unless the provision or context otherwise requires, this

division applies to any order described in this division, whether the

order is issued in a proceeding brought pursuant to this division, in

an action brought pursuant to the Uniform Parentage Act (Part 3

(commencing with Section 7600) of Division 12), or in a proceeding

for dissolution of marriage, for nullity of marriage, or for legal

separation of the parties.

(b) Nothing in this division affects the jurisdiction of the juvenile

court.

be issued on forms adopted by the Judicial Council of California and

that have been approved by the Department of Justice pursuant to

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subdivision (i) of Section 6380. 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.

SEC. 5. Section 6380 of the Family Code is amended to read:

6380. (a) Each county, with the approval of the Department of

Justice, shall, by July 1, 1996, develop a procedure, using existing

systems, for the electronic transmission of data, as described in

subdivision (b), to the Department of Justice. The data shall be

electronically transmitted through the California Law Enforcement

Telecommunications System (CLETS) of the Department of Justice

by law enforcement personnel, or with the approval of the

Department of Justice, court personnel, or another appropriate

agency capable of maintaining and preserving the integrity of both

the CLETS and the Domestic Violence Restraining Order System, as

described in subdivision (e). Data entry is required to be entered

only once under the requirements of this section, unless the order is

served at a later time. A portion of all fees payable to the Department

of Justice under subdivision (a) of Section 1203.097 of the Penal Code

for the entry of the information required under this section, based

upon the proportion of the costs incurred by the local agency and

those incurred by the Department of Justice, shall be transferred to

the local agency actually providing the data. All data with respect to

criminal court protective orders issued under subdivision (g) of

Section 136.2 of the Penal Code shall be transmitted by the court or

its designee within one business day to law enforcement personnel

by either one of the following methods:

(1) Transmitting a physical copy of the order to a local law

enforcement agency authorized by the Department of Justice to

enter orders into CLETS.

(2) With the approval of the Department of Justice, entering the

order into CLETS directly.

(b) Upon the issuance of a protective order to which this division

applies pursuant to Section 6221, or the issuance of a temporary

restraining order or injunction relating to harassment or domestic

violence pursuant to Section 527.6 or 527.8 of the Code of Civil

Procedure, or the issuance of a criminal court protective order under

subdivision (g) of Section 136.2 of the Penal Code, or the issuance of

a juvenile court restraining order related to domestic violence

pursuant to Section 213.5, 304, or 362.4 of the Welfare and Institutions

Code, or upon registration with the court clerk of a domestic violence

protective or restraining order issued by the court of another state,

as defined in Section 145, or a military tribunal or tribe, and including

any of the foregoing orders issued in connection with an order for

modification of a custody or visitation order issued pursuant to a

dissolution, legal separation, nullity, or paternity proceeding the

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Department of Justice shall be immediately notified of the contents

of the order and the following information:

(1) The name, race, date of birth, and other personal descriptive

information of the respondent as required by a form prescribed by

the Department of Justice.

(2) The names of the protected persons.

(3) The date of issuance of the order.

(4) The duration or expiration date of the order.

(5) The terms and conditions of the protective order, including

stay-away, no-contact, residency exclusion, custody, and visitation

provisions of the order.

(6) The department or division number and the address of the

court.

(7) Whether or not the order was served upon the respondent.

(8) The terms and conditions of any restrictions on the ownership

or possession of firearms.

All available information shall be included; however, the inability

to provide all categories of information shall not delay the entry of

the information available.

also indicate whether the respondent was present in court to be

informed of the contents of the court order. The respondent’s

presence in court shall provide proof of service of notice of the terms

of the protective order. The respondent’s failure to appear shall also

be included in the information provided to the Department of

Justice.

(d) Immediately upon receipt of proof of service the clerk of the

court, and immediately after service any law enforcement officer

who served the protective order, shall notify the Department of

Justice, by electronic transmission, of the service of the protective

order, including the name of the person who served the order and,

if that person is a law enforcement officer, the law enforcement

agency.

(e) The Department of Justice shall maintain a Domestic Violence

Restraining Order System and shall make available to court clerks

and law enforcement personnel, through computer access, all

information regarding the protective and restraining orders and

injunctions described in subdivision (b), whether or not served upon

the respondent.

(f) If a court issues a modification, extension, or termination of a

protective order, it shall be on forms adopted by the Judicial Council

of California and that have been approved by the Department of

Justice, and the transmitting agency for the county shall immediately

notify the Department of Justice, by electronic transmission, of the

terms of the modification, extension, or termination.

(g) The Judicial Council shall assist local courts charged with the

responsibility for issuing protective orders by developing

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informational packets describing the general procedures for

obtaining a domestic violence restraining order and indicating the

appropriate Judicial Council forms, and shall include a design, that

local courts shall complete, that describes local court procedures and

maps to enable applicants to locate filing windows and appropriate

courts. The court clerk shall provide a fee waiver form to all

applicants for domestic violence protective orders. The court clerk

shall provide all Judicial Council forms required by this chapter to

applicants free of charge. The informational packet shall also contain

a statement that the protective order is enforceable in any state, as

defined in Section 145, or on a reservation, and general information

about agencies in other jurisdictions that may be contacted regarding

enforcement of an order issued by a court of this state.

(h) For the purposes of this part, ‘‘electronic transmission’’ shall

include computer access through the California Law Enforcement

Telecommunications System (CLETS).

(i) Only protective and restraining orders issued on forms

adopted by the Judicial Council of California and that have been

approved by the Department of Justice shall be transmitted to the

Department of Justice. However, this provision shall not apply to a

valid protective or restraining order related to domestic or family

violence issued by a court of another state, as defined in Section 145,

a military tribunal, or a tribe. Those orders shall, upon request, be

registered pursuant to Section 6380.5.

SEC. 5.5. Section 6380 of the Family Code is amended to read: