In re E.F. ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
In re E.F., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
E.F.,
Defendant and Appellant.
S260839
Second Appellate District, Division Two
B295755 and B297079
Los Angeles County Superior Court
PJ53161
April 19, 2021
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
Kruger, Groban and Jenkins concurred.
In re E.F.
S260839
Opinion of the Court by Liu, J.
When a minor is the subject of a juvenile wardship
petition, the juvenile court may, “upon application in the
manner provided by Section 527 of the Code of Civil Procedure,”
issue ex parte orders enjoining the minor from “contacting,
threatening, stalking, or disturbing the peace of any person the
court finds to be at risk from the conduct of the child, or with
whom association would be detrimental to the child.” (Welf. &
Inst. Code, § 213.5, subd. (b); all undesignated statutory
references are to the Welfare and Institutions Code.) The
Courts of Appeal have divided on whether the juvenile court
may issue a temporary restraining order (TRO) pursuant to this
statute without advance notice to the minor.
We hold that section 213.5, subdivision (b) incorporates
the notice requirements set forth in Code of Civil Procedure
section 527, subdivision (c). By the terms of that provision, “[n]o
temporary restraining order shall be granted without notice”
(Code Civ. Proc., § 527, subd. (c)) to the minor unless the
prosecutor (1) shows that “great or irreparable injury will
result” before the matter can be heard with proper notice (id.,
subd. (c)(1)) and (2) previously informed the minor of the time
and place that the application will be made, made a good faith
attempt but was unable to so inform the minor, or provides
specific reasons why the prosecutor should not be required to so
inform the minor (id., subd. (c)(2)). Where the prosecutor has
not given advance notice and has not made an adequate showing
to justify the lack of notice, the court must give sufficient time
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Opinion of the Court by Liu, J.
for counsel and the minor to prepare and respond to the
application before any order is issued.
I.
In December 2018, E.F. and L.S. were ninth graders
enrolled in the same high school art class. At school on
December 7, E.F. offered L.S. a microwaved cup of noodles.
When L.S. went to drink the broth, he smelled bleach and threw
the cup out. One week later, a school official contacted officers
from the Los Angeles School Police Department and recounted
a report of the incident from an anonymous student. E.F. was
arrested but not detained. In late January 2019, the district
attorney filed a delinquency petition under section 602 alleging
that E.F. had committed the crime of poisoning, a felony. (Pen.
Code, § 347, subd. (a).) E.F. had no prior history of arrest or
involvement with the juvenile court.
In February 2019, E.F. made her first appearance in
juvenile court. Appearing with counsel for arraignment, E.F.
denied the allegations. The prosecutor asked the court to issue
a TRO enjoining E.F. from having any contact with L.S. E.F.
objected on the ground that the application did not meet the
procedural requirements set forth in Code of Civil Procedure
section 527. Specifically, she asserted that the application was
not filed with advance notice to her, nor was it accompanied by
an affidavit or verified complaint to establish that great or
irreparable injury will result to the applicant before the matter
could be heard with notice. The prosecutor acknowledged that
no notice was provided before the hearing and explained that he
did not know who was assigned to defend E.F. before the case
was called. He added that “any allegation that [the prosecutor]
didn’t inform [counsel for E.F.] in time” was due in part to the
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Opinion of the Court by Liu, J.
deputy public defender’s failure to check in with the prosecutor
sooner. The prosecutor did not have a copy of the application to
share with E.F. or her counsel at the hearing, and the court
called a recess to allow time to make copies. Nor did the
prosecutor provide an affidavit or verified complaint in support
of the TRO request; he instead referred to the police report
attached to the petition to recount the facts of the December
2018 incident. The juvenile court overruled E.F.’s objection,
finding “substantial compliance,” and issued a TRO prohibiting
E.F. from contacting L.S. and requiring her to stay at least 100
yards from him.
E.F. appealed the TRO. While that appeal was pending,
the juvenile court held an evidentiary hearing and granted the
prosecutor’s application for a three-year restraining order on the
same basis and terms as the TRO. E.F. filed a second notice of
appeal, this time challenging the three-year restraining order.
The two appeals were consolidated, with E.F. arguing, as
relevant here, that the TRO was procedurally defective and thus
invalid. The Court of Appeal disagreed, holding that section
213.5, subdivision (b) provides for the issuance of an ex parte
TRO and that section 213.5, subdivision (c) expressly provides
for a TRO effective up to 21 or 25 days to be “ ‘granted without
notice,’ ” notwithstanding the notice requirements of Code of
Civil Procedure section 527. (In re E.F. (2020) 45 Cal.App.5th
216, 220.) The Court of Appeal disagreed with In re L.W. (2020)
44 Cal.App.5th 44, 49–51, which held that a TRO application
under section 213.5, subdivision (b) must comply with the notice
requirements of Code of Civil Procedure section 527.
We granted review to resolve this conflict. Although E.F.’s
appeal of the TRO was rendered moot by the juvenile court’s
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Opinion of the Court by Liu, J.
subsequent order granting a three-year restraining order, the
limited duration of a TRO in this context calls for the exercise of
our discretion to resolve an issue that is “ ‘ “capable of repetition,
yet evading review.” ’ ” (United Farm Workers v. Superior Court
of Santa Cruz County (1975) 14 Cal.3d 902, 907.)
II.
The question presented is one of statutory interpretation
and is thus subject to de novo review. (Christensen v.
Lightbourne (2019) 7 Cal.5th 761, 771.)
Section 213.5, subdivision (b) provides in relevant part:
“After a petition has been filed pursuant to Section 601 or 602
to declare a child a ward of the juvenile court, and until the time
that the petition is dismissed or wardship is terminated, 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 finds to
be at risk from the conduct of the child, or with whom
association would be detrimental to the child.”
Section 213.5 goes on to provide a process that applies
when a TRO is issued without notice: “If a temporary
restraining order is granted without notice, the matter shall be
made returnable on an order requiring cause to be shown why
the order should not be granted, on the earliest day that the
business of the court will permit, but not later than 21 days or,
if good cause appears to the court, 25 days from the date the
temporary restraining order is granted. The court may, on the
motion of the person seeking the restraining order, or on its own
motion, shorten the time for the service of the order to show
cause on the person to be restrained.” (Id., subd. (c)(1).) In the
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Opinion of the Court by Liu, J.
alternative, or following the expiration of a TRO granted
without notice, the juvenile court may, upon notice and hearing,
issue a restraining order that may “remain in effect, in the
discretion of the court, no more than three years, unless
otherwise terminated by the court, extended by mutual consent
of all parties to the restraining order, or extended by further
order of the court on the motion of any party to the restraining
order.” (Id., subd. (d)(1).)
By its terms, section 213.5, subdivision (b) says that a
court may issue an ex parte order for injunctive relief “upon
application in the manner provided by Section 527 of the Code
of Civil Procedure.” Code of Civil Procedure section 527 states
in relevant part: “No temporary restraining order shall be
granted without notice to the opposing party, unless both of the
following requirements are satisfied: [¶] (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. [¶] (2) The applicant or the
applicant’s attorney certifies one of the following to the court
under oath: [¶] (A) That within a reasonable time prior to the
application the applicant informed the opposing party or the
opposing party’s attorney at what time and where the
application would be made. [¶] (B) That the applicant in good
faith attempted but was unable to inform the opposing party
and the opposing party’s attorney, specifying the efforts made to
contact them. [¶] (C) That for reasons specified the applicant
should not be required to so inform the opposing party or the
opposing party’s attorney.” (Id., subd. (c).)
The district attorney contends, as the Court of Appeal held
below, that section 213.5, subdivision (c)(1)’s reference to a TRO
“granted without notice” suggests that notice and a hearing are
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required only for a restraining order extending beyond the 21 or
25 days provided for in that subdivision. According to the
district attorney, it is the absence of notice and a formal hearing
that differentiates the process for issuing a 21- or 25-day TRO
from the process for issuing a restraining order of longer
duration. Echoing the Court of Appeal, the district attorney
reads section 213.5 as distinguishing between a TRO “granted
without notice” (§ 213.5, subd. (c)(1)) and a longer-term
restraining order granted “upon notice and a hearing” (id.,
subd. (d)(1)).
But this reading confuses the process for obtaining a TRO,
which is set forth in subdivision (b) of section 213.5, with the
process set forth in subdivision (c) that follows “[i]f a temporary
restraining order is granted without notice” (id., subd. (c)(1)). In
specifying what happens if a TRO is granted without notice,
subdivision (c) says nothing about what procedures must be
followed before a TRO may be granted without notice. That
issue is addressed by subdivision (b), which says the court may
issue an ex parte order “upon application in the manner
provided by Section 527 of the Code of Civil Procedure.”
The district attorney, like the court below, contends that
requiring the applicant to comply with the notice requirements
of Code of Civil Procedure section 527 would conflict with or
render superfluous section 213.5, subdivision (c)(1)’s language
that TROs may be “ ‘granted without notice.’ ” (See In re E.F.,
supra, 45 Cal.App.5th at p. 221.) But section 213.5, subdivision
(c)(1)’s recognition that TROs may be “granted without notice”
is not itself an authorization for courts to grant TROs without
notice. Section 213.5, subdivision (c)(1) sets forth the procedure
to be followed in the event that a court grants a TRO without
notice, whereas section 213.5, subdivision (b) makes clear that
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Opinion of the Court by Liu, J.
an application for a TRO must proceed “in the manner provided
by Section 527 of the Code of Civil Procedure,” which authorizes
a TRO without notice only under certain conditions (Code Civ.
Proc., § 527, subd. (c)(1), (2)). There is no conflict or surplusage.
The district attorney further argues that even if notice is
required, courtroom notice — in other words, notice first
provided at the hearing itself — suffices to satisfy the relevant
statutes. Courts have rejected this position, explaining that
“[w]hile the specific amount of time necessary to satisfy the
‘notice’ requirement is not delineated in section 213.5, more
than courtroom notice is required.” (In re Jonathan V. (2018) 19
Cal.App.5th 236, 245; see In re L.W. (2020) 44 Cal.App.5th 44,
51; cf. Babalola v. Superior Court (2011) 192 Cal.App.4th 948,
965 [requiring notice in advance of hearing for criminal
protective order]; Cal. Rules of Court, rule 3.1203(a) [“A party
seeking an ex parte order must notify all parties no later than
10:00 a.m. the court day before the ex parte appearance, absent
a showing of exceptional circumstances that justify a shorter
time for notice.”].) We agree with these courts that under the
statutory scheme, courtroom notice is not enough to avoid the
affidavit requirement specified by Code of Civil Procedure
section 527, subdivision (c).
The Court of Appeal suggested that “TROs do not need
advance notice because they are typically issued under more
emergency circumstances, while longer lasting restraining
orders do need advance notice because they are typically issued
under less pressing circumstances (usually because a TRO is
already in place).” (In re E.F., supra, 45 Cal.App.5th at p. 221.)
But Code of Civil Procedure section 527, subdivision (c) makes
clear that advance notice or a showing of justification for lack of
such notice is required for issuance of a TRO. The limited
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duration of a TRO under section 213.5, subdivision (c)(1)
provides no reason to infer — contrary to section 213.5,
subdivision (b)’s express incorporation of the notice
requirements in Code of Civil Procedure section 527 — that the
Legislature intended no advance notice be given to the juvenile,
especially when a TRO in this context may have serious
consequences for the juvenile who is restrained.
A willful and knowing violation of a restraining order
issued under section 213.5 is a misdemeanor and may subject a
juvenile to a new delinquency proceeding. (§ 213.5, subd. (h);
see Pen. Code, § 273.65.) Section 213.5 orders can be entered
into the California Law Enforcement Telecommunications
System (CLETS) database system. (§ 213.5, subd. (g).) And the
issuance of an order enjoining a juvenile’s contact with a fellow
student or other member of the school community, even for just
a few weeks, creates additional difficulties for the juvenile.
These potential consequences of a TRO counsel against an
inference that the Legislature intended to eliminate the
standard notice requirement that affords the juvenile an
adequate opportunity to contest an application for a TRO.
We see nothing in the legislative history that casts doubt
on our straightforward reading of the statutes. The Legislature
enacted section 213.5 in 1989 to provide a means by which a
juvenile court could enter TROs and protective orders in
connection with a dependency petition, similar to the injunctive
powers of the family law courts. (Stats. 1989, ch. 1409, § 2,
p. 6203; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Sen. Bill No. 221 (1989–1990 Reg. Sess.) as amended
Sept. 11, 1989, p. 3.) The primary purpose of the legislation was
to provide a tool by which a person committing abuse, rather
than the child suffering the abuse, could be removed from the
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home in situations of domestic violence. (Sen. Rules Com., Off.
of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 221
(1989–1990 Reg. Sess.) as amended Sept. 11, 1989, p. 2.) Section
213.5 was amended in 1998 to extend the same authority in
connection with delinquency petitions. (Stats. 1998, ch. 390, § 1,
p. 2909.) According to the bill sponsor, “it is common in
delinquency cases to encounter a family situation in which a
member of the household either poses a threat to a child or is
contributing to the anti-social behavior of the child.” (Sen. Com.
on Judiciary, Analysis of Sen. Bill No. 2017 (1997–1998 Reg.
Sess.) as introduced Feb. 20, 1998, p. 3.) The same amendment
also authorized the juvenile court to enjoin the minor subject to
the delinquency petition “from contacting, threatening,
stalking, or disturbing the peace of any person the court finds to
be at risk from the conduct of the child, or with whom
association would be detrimental to the child.” (Stats. 1998,
ch. 390, § 1, p. 2909.) The Judicial Council, which sponsored the
bill, explained that “expressly authorizing the juvenile court to
issue restraining orders would increase efficiency and expedite
the resolution of many cases” — for example, by enabling
“victims of juvenile crime . . . to seek protection from the juvenile
court, rather than having to pursue a civil harassment
protection order in a separate forum.” (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 2017 (1997–1998 Reg. Sess.) as
introduced Feb. 20, 1998, p. 3.)
Although efficiency was a guiding purpose of the
legislation, the Legislature chose a specific means of achieving
that end: providing a single forum for resolving a delinquency
petition along with any associated restraining or protective
orders instead of requiring two separate proceedings. Toward
that end, the Legislature largely imported rather than amended
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Opinion of the Court by Liu, J.
the procedures and standards for obtaining preliminary relief
set forth in Code of Civil Procedure section 527, subdivisions (a)
and (c). Section 213.5 does authorize the juvenile court to take
a number of steps to protect the safety of the minor and the
public, including issuing orders regarding custody, parental
rights, and the minor’s freedom of movement and access to
school. The Legislature recognized that such steps may be
necessary, sometimes with little or no notice, to ensure the
safety of the minor and the public. But the Legislature did not
do away with notice in all instances. Instead, it authorized
issuance of a TRO without notice when the applicant shows a
need to avoid “great or irreparable injury” and otherwise
complies with applicable procedures. (Code Civ. Proc., § 527,
subd. (c)(1).)
Finally, the district attorney cites rule 5.630 of the
California Rules of Court — which provides that an application
for a restraining order in a delinquency case “may be submitted
without notice, and the court may grant the petition and issue a
temporary order” (Cal. Rules of Court, rule 5.630(d)) — as
confirmation that a TRO in a juvenile proceeding may be issued
without notice. The question, however, is not simply whether a
TRO application may be submitted and granted without notice,
but under what circumstances this may occur.
California Rules of Court, rule 5.630(a) explains: “After a
petition has been filed under section 300, 601, or 602, and until
the petition is dismissed or dependency or wardship is
terminated, or the ward is no longer on probation, the court may
issue restraining orders as provided in section 213.5.” The
phrase “as provided in section 213.5” necessarily incorporates
the procedural requirements set forth in section 527. Further,
although California Rules of Court, rule 5.360(d)(1) provides
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Opinion of the Court by Liu, J.
that “[i]n determining whether or not to issue the temporary
restraining order without notice, the court must consider all
documents submitted with the application and may review the
contents of the juvenile court file regarding the child,” nothing
in the rule specifies under what circumstances it is permissible
for a court to issue a TRO without notice. Code of Civil
Procedure section 527 makes clear that the court must find that
“great or irreparable injury will result to the applicant before
the matter can be heard on notice” (id., subd. (c)(1)) and that the
applicant has made efforts or has given reasons why no effort
need be made, to inform the opposing party when and where the
application would be made (id., subd. (c)(2)). To the extent the
district attorney claims there is tension or inconsistency
between what California Rules of Court, rule 5.630 authorizes
and what section 213.5 or Code of Civil Procedure section 527
says, it is settled that “ ‘[r]ules promulgated by the Judicial
Council may not conflict with governing statutes’ ” and that
“ ‘[i]f a rule is inconsistent with a statute, the statute controls.’ ”
(People v. Guerra (2016) 5 Cal.App.5th 961, 966.)
In sum, we hold that a TRO application under section
213.5 must satisfy the procedural requirements of Code of Civil
Procedure section 527. This means that an applicant who seeks
the issuance of a TRO without notice must show “great or
irreparable injury” justifying the absence of notice (Code Civ.
Proc., § 527, subd. (c)(1)), as well as a good faith effort to inform,
or reasons why no effort need be made to inform, the opposing
party when and where the application would be made (id., subd.
(c)(2). In light of our holding, we need not decide whether notice
in this context is required as a matter of due process. Where the
prosecutor neither provides notice nor makes a showing of
justification for lack of notice, the juvenile court must provide
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Opinion of the Court by Liu, J.
counsel and the minor with sufficient time to prepare and
respond before any TRO may issue. How much time is required
will depend on the totality of the circumstances, including the
complexity of the incident that gave rise to the juvenile petition,
the number of witnesses relevant to the matter, and the scope
and type of restrictions requested in the TRO application.
In this matter, the district attorney concedes that no
notice was provided before the hearing, and no attempt was
made to show “great or irreparable injury” (Code Civ. Proc.,
§ 527, subd. (c)(1)) or otherwise to comply with Code of Civil
Procedure section 527, subdivision (c). The juvenile court’s
issuance of the TRO thus exceeded its authority under section
213.5. We express no view on the Court of Appeal’s
determination that substantial evidence supports the juvenile
court’s issuance of the restraining order in this case.
CONCLUSION
We reverse the Court of Appeal’s judgment affirming the
issuance of the temporary restraining order.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C.J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
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See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re E.F.
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 45 Cal.App.5th 216Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S260839
Date Filed: April 19, 2021
__________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Morton Rochman
__________________________________________________________________
Counsel:
Courtney M. Selan, under appointment by the Supreme Court, for
Defendant and Appellant.
Jackie Lacey, District Attorney, John Pomeroy, Phyllis Asayama and
Grace Shin, Deputy District Attorneys, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Courtney M. Selan
Attorney at Law
11664 National Blvd., Suite 258
Los Angeles, CA 90064
(310) 452-6870
Grace Shin
Deputy District Attorney
320 West Temple St., Room 540
Los Angeles, CA 90012
(213) 974-5911