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National Crime Victim Law Institute

In re L.W., 257 Cal. Rptr. 3d 315 (Cal. Ct. App. 2020)

July 16, 2020

Defendant was charged in a juvenile wardship petition with committing sexual battery against two child-victims. Prior to adjudication, and without notice to defendant or his counsel, the juvenile court issued temporary restraining orders against defendant as to the two victims. Following a noticed hearing held prior to adjudication, the court issued a three-year restraining order as to both victims. Defendant appealed from the temporary restraining orders and the three-year restraining orders, contending the temporary orders were erroneously granted without notice and the three-year order was not supported by substantial evidence. Under California statute, with regard to juvenile proceedings, “upon application in the manner provided by Section 527 of the Code of Civil Procedure … the juvenile court may issue ex parte orders … enjoining the child from contacting, threatening, stalking, or disturbing the peace of any person the court find to be at risk from the conduct of the child, or with whom association would be detrimental to the child.” The court noted that by statute, these applications may be made orally, and without notice. Section 527 of the Code of Civil Procedure provides that no temporary restraining order shall be granted without notice to the opposing party unless: (1) “It appears from facts shown by affidavit or by the verified complaint that great or irreparable injury will result to the applicant before the matter can be heard on notice”; and (2) the opposing party was informed within a reasonable time prior to the application; the applicant in good faith attempted to inform the opposing party; or the application should not be required to inform the opposing party for reasons specified by the applicant. The court observed that here, “[t]he People made no effort to comply with these requirements. Instead, they asserted that temporary restraining orders may be issued without notice … subject only to the requirement that the court consider all documents submitted with the application.” On appeal, the state argued that they effectively complied with Section 527 because the facts alleged demonstrated that great or irreparable injury would result to the victims before the matter could be heard on notice. The court found, however, that “the facts alleged in the petition demonstrated no such thing.” “Because the People presented no evidence of an emergency or other urgency and made no attempt to give appellant prior notice of their intent to seek the temporary restraining orders, the court erred in issuing those orders without notice.” However, the court found the evidence sufficient to support the three-year restraining order, finding it reasoned, reasonable, and consistent with public policy objectives. The order was affirmed.