2005 California Welfare and Institutions Code Sections 15657-15657.5 Dependent Adults

WELFARE AND INSTITUTIONS CODE
SECTION 15657-15657.5

15657.  Where it is proven by clear and convincing evidence that a
defendant is liable for physical abuse as defined in Section
15610.63, or neglect as defined in Section 15610.57, and that the
defendant has been guilty of recklessness, oppression, fraud, or
malice in the commission of this abuse, the following shall apply, in
addition to all other remedies otherwise provided by law:
   (a) The court shall award to the plaintiff reasonable attorney's
fees and costs.  The term "costs" includes, but is not limited to,
reasonable fees for the services of a conservator, if any, devoted to
the litigation of a claim brought under this article.
   (b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.  However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
   (c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
15657.03.  (a) An elder or dependent adult who has suffered abuse as
defined in Section 15610.07 may seek protective orders as provided
in this section.
   (b) For the purposes of this section, "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:
   (1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, 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.
   (2) 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.
   (3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
   (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 an affidavit 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) (1) 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 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:
   (A) 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.
   (B) That the party to be excluded has assaulted or threatens to
assault the petitioner.
   (C) That physical or emotional harm would otherwise result to the
petitioner.
   (2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
   (e) The court may issue, upon notice and a hearing, any of the
orders set forth in 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 other party.
   (f) 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
three 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 three 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 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.
   (g) 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 affidavits in support of the
petition. Service shall be made at least two 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.
   (h) The court may, upon the filing of an affidavit by the
applicant 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 be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
   (i) (1) If the person 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 thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order, are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
   (2) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form:  "NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF
THIS FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY
SERVED WITH A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE
ORDER AND NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING
EITHER IN PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE
ORDER IS ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF
THE ORDER WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS
____. IF THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE
TEMPORARY OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE
CHANGE, CALL THE CLERK OF THE COURT AT ____."
   (j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, 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
local law enforcement agency designated by the petitioner or the
attorney for the petitioner 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.
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.
   (2) 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.
   (3) 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.
   (4) 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.
   (k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
   (l) 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.
   (m) (1) Fees otherwise payable by a petitioner to a law
enforcement agency for serving an order issued under this section may
be waived in any case in which the petitioner has requested a fee
waiver on the initiating petition and has filed a declaration that
demonstrates, to the satisfaction of the court, the financial need of
the petitioner for the fee waiver. The declaration required by this
subdivision shall be on one of the following forms:
   (A) The form formulated and adopted by the Judicial Council for
litigants proceeding in forma pauperis pursuant to Section 68511.3 of
the Government Code, but the petitioner is not subject to any other
requirements of litigants proceeding in forma pauperis.
   (B) Any other form that the Judicial Council may adopt for this
purpose pursuant to subdivision (r).
   (2) In conjunction with a hearing pursuant to this section, the
court may make an order for the waiver of fees otherwise payable by
the petitioner to a law enforcement agency for serving an order
issued under this section.
   (n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
   (o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
   (2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
   (3) 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.
   (4) 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.
   (p) 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.
   (q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of the Civil
Code, by Chapter 3 (commencing with Section 525) 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.
   (r) The Judicial Council shall promulgate forms and instructions
therefor, 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.
15657.04.  (a) The court shall order that any party enjoined
pursuant to Section 15657.03 be prohibited from taking any action to
obtain the address or location of a protected party or a protected
party's family members, caretakers, or guardian, unless there is good
cause not to make that order.
   (b) The Judicial Council shall promulgate forms necessary to
effectuate this section.
15657.05.  Where it is proven by clear and convincing evidence that
an individual is liable for abduction, as defined in Section
15610.06, in addition to all other remedies otherwise provided by
law:
   (a) (1) The court shall award to the plaintiff reasonable attorney'
s fees and costs.  The term "costs" shall include, but is not limited
to, costs of representing the abductee and his or her family in this
state and any other state in any action related to the abduction and
returning of the abductee to this state, as well as travel expenses
for returning the abductee to this state and reasonable fees for the
services of a conservator, if any, devoted to the litigation of a
claim brought under this article.
   (2) The award of attorney's fees shall be governed by the
principles set forth in Section 15657.1.
   (b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.  However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
   (c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
15657.1.  The award of attorney's fees pursuant to subdivision (a)
of Section 15657 shall be based on all factors relevant to the value
of the services rendered, including, but not limited to, the factors
set forth in Rule 4-200 of the Rules of Professional Conduct of the
State Bar of California, and all of the following:
   (a) The value of the abuse-related litigation in terms of the
quality of life of the elder or dependent adult, and the results
obtained.
   (b) Whether the defendant took reasonable and timely steps to
determine the likelihood and extent of liability.
   (c) The reasonableness and timeliness of any written offer in
compromise made by a party to the action.
15657.2.  Notwithstanding this article, any cause of action for
injury or damage against a health care provider, as defined in
Section 340.5 of the Code of Civil Procedure, based on the health
care provider's alleged professional negligence, shall be governed by
those laws which specifically apply to those professional negligence
causes of action.
15657.3.  (a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent
jurisdiction over civil actions and proceedings involving a claim
for relief arising out of the abduction, as defined in Section
15610.06, or the abuse of an elderly or dependent adult, if a
conservator has been appointed for plaintiff prior to the initiation
of the action for abuse.
   (b) The department of the superior court having jurisdiction over
probate conservatorships shall not grant relief under this article if
the court determines that the matter should be determined in a civil
action, but shall instead transfer the matter to the general civil
calendar of the superior court.  The court need not abate any
proceeding for relief pursuant to this article if the court
determines that the civil action was filed for the purpose of delay.
   (c) The death of the elder or dependent adult does not cause the
court to lose jurisdiction of any claim for relief for abuse of an
elder or dependent adult.
   (d) Upon petition, after the death of the elder or dependent
adult, the right to maintain an action shall be transferred to the
personal representative of the decedent, or if none, to the person or
persons entitled to succeed to the decedent's estate.
15657.5.  (a) Where it is proven by a preponderance of the evidence
that a defendant is liable for financial abuse, as defined in Section
15610.30, in addition to all other remedies otherwise provided by
law, the court shall award to the plaintiff reasonable attorney's
fees and costs.  The term "costs" includes, but is not limited to,
reasonable fees for the services of a conservator, if any, devoted to
the litigation of a claim brought under this article.
   (b) Where it is proven by a preponderance of the evidence that a
defendant is liable for financial abuse, as defined in Section
15610.30, and where it is proven by clear and convincing evidence
that the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse, in addition to
reasonable attorney's fees and costs set forth in subdivision (a),
and all other remedies otherwise provided by law, the following shall
apply:
   (1) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.
   (2) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
   (c) Nothing in this section affects the award of punitive damages
under Section 3294 of the Civil Code.


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