BILL NUMBER: SB 188 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Runner
FEBRUARY 18, 2009
An act to amend Section 527.8 of the Code of Civil Procedure,
relating to temporary restraining orders.
LEGISLATIVE COUNSEL'S DIGEST
SB 188, as introduced, Runner. Temporary restraining orders:
schools.
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.
This bill would modify the definition of employer for the purposes
of that provision to include an educational site, such as a school,
college, university, or technical institute. The bill would also
change the definition of employee for the purposes of that provision
to include students at those educational sites.
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 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 and, at the discretion of the
court, any number of other employees at the workplace, and, if
appropriate, other employees at other workplaces of the employer.
(b) For the purposes of this section:
(1) "Unlawful violence" is means 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 means
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 means 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.
(4) "Employee" means persons defined in Section 350 of the Labor
Code. "Employee" also includes the members of boards of directors of
private, public, and quasi-public corporations and elected and
appointed public officers. For purposes of this section only
"employee" also includes:
(A) A volunteer or independent
contractor who performs services for the employer at the employer's
worksite.
(B) Students and staff at an educational site, such as a school,
college, university, or technical institute.
(5) "Employer" means persons defined in Section 350 of the Labor
Code. "Employer" also includes the following:
(A) A federal agency, the state, a state agency, a city, county,
or district.
(B) A private, public, or quasi-public corporation, or any public
agency thereof or therein.
(C) An educational site, such as a school, college, university, or
technical institute.
(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) For purposes of this section, the terms "employer" and
"employee" mean persons defined in Section 350 of the Labor Code.
"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. "Employee" also
includes the members of boards of directors of private, public, and
quasi-public corporations and elected and appointed public officers.
For purposes of this section only, "employee" also includes a
volunteer or independent contractor who performs services for the
employer at the employer's worksite.
(e)
(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 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 or injunction issued under this section may include other named
family or household members who reside with the employee, or other
persons employed at his or her workplace or workplaces. 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)
(e) 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)
(f) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(h)
(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.
(i)
(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 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.
(j)
(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.
(k)
(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
an employer to provide a safe workplace for employees and other
persons.
(m)
( ) 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.
(n)
(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.
(o)
(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.
(p)
(o) There is no filing fee for a petition that alleges
that a person has inflicted or threatened violence against an
employee of the petitioner, or stalked the employee, or acted or
spoken in any other manner that has placed the employee 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.
(q)
(p) (1) Subject to paragraph (4) of subdivision (b) of
Section 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.