Bill Text: CA SB196 | 2015-2016 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Elder abuse: protective orders.

Spectrum: Slight Partisan Bill (Democrat 2-1)

Status: (Passed) 2015-09-09 - Chaptered by Secretary of State. Chapter 285, Statutes of 2015. [SB196 Detail]

Download: California-2015-SB196-Introduced.html

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BILL NUMBER: SB 196	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Hancock

                        FEBRUARY 10, 2015

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


	LEGISLATIVE COUNSEL'S DIGEST


   SB 196, as introduced, Hancock. Elder abuse: protective orders.
   Existing law authorizes a court to issue a protective order to
restrain any person for the purpose of preventing the abuse of an
elder or dependent adult, as specified. Under existing law, certain
persons are authorized to file a petition for these protective orders
on behalf of the elder or dependent adult, including a conservator
or trustee, an attorney-in-fact, a person appointed as a guardian ad
litem, or other person legally authorized to seek the order.
   This bill would additionally authorize a county adult protective
services agency to file a petition for a protective order on behalf
of an elder or dependent adult if the elder or dependent adult has
been identified as lacking capacity and a conservatorship is being
sought.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 15657.03 of the Welfare and Institutions Code
is amended to read:
   15657.03.  (a) (1) An elder or dependent adult who has suffered
abuse  as defined in Section 15610.07  may seek
protective orders as provided in this section.
   (2) A petition may be brought on behalf of an abused elder or
dependent adult by a conservator or a trustee of the elder or
dependent adult,  a   county adult protective services
agency in a case in which an elder or dependent adult has been
identified as lacking capacity and a conservatorship is being sought,
 an attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney, a person appointed as
a guardian ad litem for the elder or dependent adult, or other person
legally authorized to seek  such   the 
relief.
   (b) For the purposes of this section: 
   (1) "Abuse" has the meaning set forth in Section 15610.07. 

   (1) 
    (2)  "Conservator" means the legally appointed
conservator of the person or estate of the petitioner, or both.

   (2) 
    (3)  "Petitioner" means the elder or dependent adult to
be protected by the protective orders and, if the court grants the
petition, the protected person. 
   (3) 
    (4)  "Protective order" means an order that includes any
of the following restraining orders, whether issued ex parte, after
notice and hearing, or in a judgment:
   (A) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of, the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner.
   (B) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
   (C) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A) or (B). 
   (4) 
    (5)  "Respondent" means the person against whom the
protective orders are sought and, if the petition is granted, the
restrained person.
   (c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if a declaration shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
   (d) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in paragraph  (3)   (4)  of
subdivision (b). However, the court may issue an ex parte order
excluding a party from the petitioner's residence or dwelling only on
a showing of all of the following:
   (1) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
   (2) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or a conservator of the petitioner.
   (3) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or a conservator of the petitioner.
   (e) A request for the issuance of a temporary restraining order
without notice under this section shall 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 shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
   (f) Within 21 days, or, if good cause appears to the court, 25
days, from the date that a request for a temporary restraining order
is granted or denied, a hearing shall be held on the petition. If no
request for temporary orders is made, the hearing shall be held
within 21 days, or, if good cause appears to the court, 25 days, from
the date that the petition is filed.
   (g) The respondent may file a response that explains or denies the
alleged abuse.
   (h) The court may issue, upon notice and a hearing, any of the
orders set forth in paragraph  (3)   (4) 
of subdivision (b). The court may issue, after notice and hearing, an
order excluding a person from a residence or dwelling if the court
finds that physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or conservator of the petitioner.
   (i) (1) In the discretion of the court, an order issued after
notice and a hearing under this section may have a duration of not
more than five years, subject to termination or modification by
further order of the court either on written stipulation filed with
the court or on the motion of a party. These orders may be renewed
upon the request of a party, either for five years or permanently,
without a showing of any further abuse since the issuance of the
original order, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. The request for renewal may be brought
at any time within the three months before the expiration of the
order.
   (2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
   (3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure, of
the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with Section
6205) of Division 7 of Title 1 of the Government Code, by service on
the Secretary of State. If the party who is protected by the order
cannot be notified prior to the hearing for modification or
termination of the protective order, the court shall deny the motion
to modify or terminate the order without prejudice or continue the
hearing until the party who is protected can be properly noticed and
may, upon a showing of good cause, specify another method for service
of process that is reasonably designed to afford actual notice to
the protected party. The protected party may waive his or her right
to notice if he or she is physically present in court and does not
challenge the sufficiency of the notice.
   (j) In a proceeding under this section, a support person may
accompany a party in court and, if 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 abuse. The support person is not
present as a legal adviser and may not provide legal advice. The
support person may assist the person who alleges he or she is a
victim of abuse in feeling more confident that he or she will not be
injured or threatened by the other party during the proceedings if
the person who alleges he or she is a victim of abuse and the other
party are required to be present in close proximity. This subdivision
does not preclude 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.
   (k) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any declarations in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
   (l) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to five years.
   (m) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
   (2) The reissued order shall state on its face the date of
expiration of the order.
   (n) (1) If a respondent, named in an order issued under this
section after a hearing, has not been served personally with the
order 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.
   (2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to the respondent at the most current address for the respondent
that is available to the court.
   (3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:

   "If you have been personally served with a temporary restraining
order and notice of hearing, but you do not appear at the hearing
either in person or by a lawyer, and a restraining order that is the
same as this temporary restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the following address: ____.
   If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."

   (o) (1) Information on any protective order relating to elder or
dependent adult abuse issued by a court pursuant to this section
shall be transmitted to the Department of Justice in accordance with
either paragraph (2) or (3).
   (2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, extension, modification,
or termination was made, to each law enforcement agency having
jurisdiction over the residence of the petitioner, and to any
additional law enforcement agencies within the court's discretion as
are requested by the petitioner.
   (3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
   (A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
   (B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
   (4) 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 abuse.
   (5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
   (6) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if 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.
   (7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's 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 of the Penal Code.
   (p) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
   (q) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
   (r) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this section.
   (s) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
   (t) (1) A person subject to a protective order under this section
shall not own, possess, purchase, receive, or attempt to receive a
firearm or ammunition 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 of the Code of Civil
Procedure.
   (3) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm or ammunition while subject
to a protective order issued under this section is punishable
pursuant to Section 29825 of the Penal Code.
   (4) This subdivision shall not apply in a case in which the
protective order issued under this section was made solely on the
basis of financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
   (u) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
   (v) This section does not apply to any action or proceeding
governed by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
   (w) The Judicial Council shall develop forms, instructions, and
rules relating to matters governed by this section. The petition and
response forms shall be simple and concise, and their use by parties
in actions brought pursuant to this section shall be mandatory.