CONSENT 

Bill No: AB 2517

Author: Gloria (D)

Amended: 6/8/20 in Assembly

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-0, 7/30/20

AYES: Jackson, Borgeas, Durazo, Lena Gonzalez, Melendez, Monning, Stern, Umberg, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 79-0, 6/15/20 - See last page for vote

SUBJECT: Domestic violence: personal property and liens

SOURCE: California Partnership to End Domestic Violence

DIGEST:

This bill authorizes courts, beginning January 1, 2022, to make a finding in a domestic violence restraining order issued after notice and a hearing that specific debts were incurred as a result of domestic violence.

ANALYSIS:

Existing law:

1. Provides for the issuance of a “temporary restraining order” (TRO). (Fam. Code § 240 et seq.)^[1]
   1. Provides that, with specified exceptions, a TRO may be granted without notice to the respondent if it is alleged that irreparable injury would result to the petitioner before the matter can be heard on notice. (§ 241.)
   2. If the TRO is granted without notice, requires a hearing to be held on the petition within 21 days of the date the TRO is granted, or 25 days if the court finds good cause. (§ 242(a).)
   3. If the hearing is heard after that timeframe, provides that the TRO is unenforceable, unless the court grants a continuance for a reasonable period. (§§ 242(b) & 245.)
2. Establishes the Domestic Violence Protection Act ([DVPA] § 6200 et seq.), which sets forth procedural and substantive requirements for the issuance of a protective order to enjoin, among other things, specified acts of abuse (§§ 6318; 6320).
3. Defines “protective order,” for purposes of the DVPA and 1), above, as a restraining order, whether issued ex parte, after notice and hearing, or in a judgment, that is an order enjoining specified acts of abuse, excluding a person from a dwelling, or enjoining other specified behavior. (§ 6218.)
4. Defines “domestic violence” as abuse perpetrated against a spouse, cohabitant, a person the abuser dates, a person who has a child with the abuser, a child, and immediate relatives. (§ 6211.)
5. Defines “abuse” as any of the following:
   1. Intentionally or recklessly causing or attempting to cause bodily injury.
   2. Sexual assault.
   3. Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
   4. Engaging in enumerated harmful behaviors, including disturbing the peace of the other party. (§§ 6203(a); 6320.)
6. Provides that a court may issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties and the payment of liens or encumbrances coming due during the period the order is in effect. (§ 6324.)
7. Makes it a crime, punishable by fine, imprisonment for up to a year, or both, for a person to willfully obtain personal identifying information of another person and use that information for any unlawful purpose, including obtaining, or attempting to obtain, credit, goods, services, real property, or medical information without the consent of that person. (Pen. Code § 530.5(a).)

This bill:

Provides that after notice and a hearing, a court may issue an order determining the use, possession, and control of real or personal property of the parties during the period the order is in effect and the payment of any liens or encumbrances coming due during that period.

Provides that such an order may include a finding that specific debts were incurred as a result of domestic violence and without the consent of the party, including identity theft. Provides that such a finding does not affect the priority of any lien or other security interest.

Requires the Judicial Council to adopt or modify forms as necessary to effectuate the bill’s provisions.

Becomes operative January 1, 2022.

Background

1. Domestic violence restraining orders

The DVPA seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to enable them to seek a resolution. The DVPA’s “protective purpose is broad both in its stated intent and its breadth of persons protected.” (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863.) The DVPA must be broadly construed in order to accomplish the statute’s purpose. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.) The Act enables a party to seek a “protective order,” also known as a restraining order, which may be issued to protect a petitioner who presents “reasonable proof of a past act or acts of abuse.” (§ 6300; see § 6218.)

Petitioners who need immediate protection may seek a TRO, which becomes effective upon receiving a judge’s signature and being served on the respondent. TROs may be issued “ex parte” (Latin for “by or for one party”)—that is, without formal notice to, or the presence of, the respondent. (See § 241.)^[2] Because a restrained party would not have had the opportunity to defend their interests, TROs are of necessity short in duration. If a noticed hearing is not held within 21 days (or 25 if the court finds good cause), the TRO is no longer enforceable, unless a court grants a continuance. (§§ 242 & 245.) After a duly noticed hearing, however, the court is authorized to extend the original TRO into a “permanent” protective order (also known as orders after hearing) that may last up to five years but are renewable. (§§ 6345, 6302.)

1. Domestic abuse, coercive control, and financial abuse

According to Katie Ray-Jones, the National Domestic Violence Hotline’s Chief Executive, “‘[d]omestic violence is rooted in power and control.’”^[3] When abusers lose control of their intimate partners, they resort to a variety of tactics to subjugate them. The Center for Disease Control states that intimate partner violence may consist of physical violence, sexual violence, and psychological aggression, which includes expressive aggression (insulting, name calling) and coercive control (behaviors that involve monitoring, controlling, or threatening the victim).^[4] Coercive control encompasses a variety of behaviors aimed at overcoming a person’s free will and curtailing their personal liberty and sense of agency.

A pervasive form of coercive control is financial abuse, which refers to “behavior that seeks to control a person’s ability to acquire, use, or maintain economic resources, and threatens their self-sufficiency and financial autonomy.”^[5] An estimated 99 percent of domestic violence cases involve financial abuse.^[6] Examples of financial abuse include: forcing a partner to miss, leave, or be late to work; harassing a partner at work; controlling how money is spent; withholding money or basic living resources; giving a partner an ‘allowance’; stealing money, credit, property, or identity from a partner; and forcing a partner to file fraudulent legal financial documents or overspend on credit cards.^[7] The effects can devastate the victim and make them more vulnerable to further domestic abuse.

The California Partnership to End Domestic Violence, the bill’s sponsor, explains that financial abuse can include:

[S]tealing money, credit, property or identity from a partner; and/or forcing a partner to file fraudulent legal financial documents or overspend on credit cards. Abusive partners can incur debt without a survivor’s consent or coerce a survivor into incurring the debt, including by threats of harm. This debt and the credit score impact can have long-term consequences for survivors and create barriers to educational, housing and employment opportunities. . . . Research shows that access to economic resources is the most likely predictor of whether a survivor will be able to permanently separate form their abusive partners. (Footnotes omitted.)

Meanwhile, changes to everyday life associated with the COVID-19 pandemic have led to increased rates of domestic violence.^[8] Shelter-in-place orders, job losses, and school closures deteriorate strained relationships and keep victims confined with abusers. Many victims find it more difficult to seek help, escape to a safe location, report abuse to law enforcement, or go to court to get a restraining order. The California Partnership to End Domestic Violence adds that the economic vulnerabilities due to the current COVID-19 national health emergency put “survivors at risk of ending up further in poverty or returning to their abusive partners. Every step we take to improve economic security of survivors will help keep them safe during this already tumultuous time.”

1. Enables courts to declare specific debts were incurred as a result of domestic abuse

This bill provides an important tool for victims who are subjected to domestic violence in the form of financial abuse. Existing law provides that a court may issue a TRO determining the temporary use, possession, and control of real or personal property of the parties and the payment of liens or encumbrances coming due during the period the order is in effect. (§ 6324.) This bill would, beginning January 1, 2022, provide that a court may also issue such an order in a permanent restraining order. The bill also provides that such an order may include a finding that specific debts were incurred as a result of domestic violence and without the consent of the party, including the crime of identity theft under Penal Code section 530.5.^[9] This will empower courts to declare that a debt belongs to the abuser during the time the permanent restraining order is in effect.

The author writes: “AB 2517 will play a critical part in providing some protections judges can use in determining who is responsible for paying off the debt that happened. This bill is essential in helping survivors get back on track faster.”

While a finding pursuant to this bill is binding as to the parties, the victim may need to take additional action to protect themselves against claims from creditors. Civil Code section 1798.93 provides that a victim of identity theft can bring an action against a claimant and is entitled to various forms of relief, including a declaration that the claim is void and unenforceable as against the victim. Section 1798.93 also provides for a civil penalty for up to $30,000 if the victim establishes by clear and convincing evidence that the claimant continued to pursue their claim against the victim after being presented with facts that were later held to entitle the victim to a judgement under that section. A finding under this bill that a specific debt was incurred as a result of domestic violence would be probative, if not determinative, in a proceeding under section 1798.

Finally, this bill also provides that it does not affect the priority of any lien or other security interest. This amendment was taken to allay the concerns of the California Land Title Association, which, as a result, has taken a neutral position on the bill.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/13/20)

California Partnership to End Domestic Violence (source)

A Community for Peace

Alliance Against Family Violence and Sexual Assault

Asian Women’s Shelter

California Low-Income Consumer Coalition

Casa de Esperanza

Catalyst Domestic Violence Services

City and County of San Francisco, Department on the Status of Women

Community Overcoming Relationship Abuse

Community Resource Center

Disability Rights California

EndTAB

Haven Women’s Center of Stanislaus

House of Ruth

Interface Children & Family Services

Jewish Family Service of Los Angeles

Laura’s House

Majarjee Mason Center

National Association of Social Workers, California Chapter

Peace Over Violence

Project: PeaceMakers, Inc.

Rainbow Services, Ltd.

StrengthUnited

Walnut Avenue Family & Women’s Center

WEAVE

OPPOSITION: (Verified 8/13/20)

None received

ASSEMBLY FLOOR: 79-0, 6/15/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

Prepared by: Josh Tosney / JUD. / (916) 651-4113

8/14/20 12:36:36

**** END ****

1. All further statutory references are to the Family Code, unless otherwise specified. ↑

2. A TRO is distinct from an “emergency protective order,” which is an order specifically requested by a law enforcement official and that a judicial officer finds necessary to prevent the occurrence or recurrence of domestic violence, child abuse, child abduction, or abuse of an elder or dependent adult. (§§ 6250, 6250.3, 6251.) An emergency protective order is not subject to the provisions governing TROs. (See § 240.) ↑

3. Newberry, Laura & Santa Cruz, Nicole, Domestic abuse victims in ‘worst-case scenario’ during outbreak, providers say (March 24, 2020) Los Angeles Times, available at https://www.latimes.com/california/story/2020-03-24/womens-shelters-brace-for-surge-in-domestic-violence-as-coronavirus-quarantines-isolate-survivors (as of July 16, 2020). ↑

4. The National Intimate Partner and Sexual Violence Survey: 2010-2012 State Report (April 2017), p. 14, available at https://www.cdc.gov/violenceprevention/pdf/NISVS-StateReportBook.pdf (as of July 16, 2020). ↑

5. National Network to End Domestic Violence, Financial Abuse Fact Sheet, available at https://nnedv.org/wp-content/uploads/2019/07/Library_EJ_Financial_Abuse_Fact_Sheet.pdf (as of July 16, 2020). ↑

6. Id. ↑

7. Id. ↑

8. Newberry, Laura & Santa Cruz, Nicole, Domestic abuse victims in ‘worst-case scenario’ during outbreak, providers say (March 24, 2020) Los Angeles Times, available at https://www.latimes.com/california/story/2020-03-24/womens-shelters-brace-for-surge-in-domestic-violence-as-coronavirus-quarantines-isolate-survivors (as of July 16, 2020). ↑

9. That section makes it a crime for a person to willfully obtain personal identifying information of another person and use that information for any unlawful purpose, including obtaining, or attempting to obtain, credit, goods, services, real property, or medical information without the consent of that person. ↑

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: AB 2517 (Author:Gloria)

Version: June 8, 2020

Hearing Date: July 30, 2020

Fiscal: Yes

Urgency: No

Consultant: JT

SUBJECT

Domestic violence: personal property and liens

DIGEST

This bill, beginning January 1, 2022, authorizes courts to make a finding in a domestic violence restraining order issued after notice and a hearing that specific debts were incurred as a result of domestic violence.

EXECUTIVE SUMMARY

A pervasive form of coercive control is financial abuse, which refers to “behavior that seeks to control a person’s ability to acquire, use, or maintain economic resources, and threatens their self-sufficiency and financial autonomy.”^[1] Existing law provides that a court may issue a temporary restraining order determining the temporary use, possession, and control of real or personal property of the parties and the payment of liens or encumbrances coming due during the period the order is in effect.

This bill would, beginning January 1, 2022, provide that a court may also issue such an order in a permanent restraining order. The bill also provides that such an order may include a finding that specific debts were incurred as a result of domestic violence and without the consent of the party, including the crime of identity theft. The bill also requires the Judicial Council to adopt or modify forms as necessary to effectuate the bill’s provisions.

The bill is sponsored by the California Partnership to End Domestic Violence and supported by numerous organizations. It has no known opposition.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides for the issuance of a “temporary restraining order” (TRO). (Fam. Code § 240 et seq.)^[2]
   1. Provides that, with specified exceptions, a TRO may be granted without notice to the respondent if it is alleged that irreparable injury would result to the petitioner before the matter can be heard on notice. (§ 241.)
   2. If the TRO is granted without notice, requires a hearing to be held on the petition within 21 days of the date the TRO is granted, or 25 days if the court finds good cause. (§ 242(a).)
   3. If the hearing is heard after that timeframe, provides that the TRO is unenforceable, unless the court grants a continuance for a reasonable period. (§§ 242(b) & 245.)
2. Establishes the Domestic Violence Protection Act ([DVPA] § 6200 et seq.), which sets forth procedural and substantive requirements for the issuance of a protective order to enjoin, among other things, specified acts of abuse (§§ 6318; 6320).
3. Defines “protective order,” for purposes of the DVPA and 1), above, as a restraining order, whether issued ex parte, after notice and hearing, or in a judgment, that is an order enjoining specified acts of abuse, excluding a person from a dwelling, or enjoining other specified behavior. (§ 6218.)
4. Defines “domestic violence” as abuse perpetrated against a spouse, cohabitant, a person the abuser dates, a person who has a child with the abuser, a child, and immediate relatives. (§ 6211.)
5. Defines “abuse” as any of the following:
   1. Intentionally or recklessly causing or attempting to cause bodily injury.
   2. Sexual assault.
   3. Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
   4. Engaging in enumerated harmful behaviors, including disturbing the peace of the other party. (§§ 6203(a); 6320.)
6. Provides that a court may issue an ex parte order determining the temporary use, possession, and control of real or personal property of the parties and the payment of liens or encumbrances coming due during the period the order is in effect. (§ 6324.)
7. Makes it a crime, punishable by fine, imprisonment for up to a year, or both, for a person to willfully obtain personal identifying information of another person and use that information for any unlawful purpose, including obtaining, or attempting to obtain, credit, goods, services, real property, or medical information without the consent of that person. (Pen. Code § 530.5(a).)

This bill:

Provides that after notice and a hearing, a court may issue an order determining the use, possession, and control of real or personal property of the parties during the period the order is in effect and the payment of any liens or encumbrances coming due during that period.

Provides that such an order may include a finding that specific debts were incurred as a result of domestic violence and without the consent of the party, including identity theft. Provides that such a finding does not affect the priority of any lien or other security interest.

Requires the Judicial Council to adopt or modify forms as necessary to effectuate the bill’s provisions.

Becomes operative January 1, 2022.

COMMENTS

1. Domestic violence restraining orders

The DVPA seeks to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a separation of persons involved in domestic violence for a period sufficient to enable them to seek a resolution. The DVPA’s “protective purpose is broad both in its stated intent and its breadth of persons protected.” (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863.) The DVPA must be broadly construed in order to accomplish the statute’s purpose. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.) The Act enables a party to seek a “protective order,” also known as a restraining order, which may be issued to protect a petitioner who presents “reasonable proof of a past act or acts of abuse.” (§ 6300; see § 6218.)

Petitioners who need immediate protection may seek a TRO, which becomes effective upon receiving a judge’s signature and being served on the respondent. TROs may be issued “ex parte” (Latin for “by or for one party”)—that is, without formal notice to, or the presence of, the respondent. (See § 241.)^[3] Because a restrained party would not have had the opportunity to defend their interests, TROs are of necessity short in duration. If a noticed hearing is not held within 21 days (or 25 if the court finds good cause), the TRO is no longer enforceable, unless a court grants a continuance. (§§ 242 & 245.) After a duly noticed hearing, however, the court is authorized to extend the original TRO into a “permanent” protective order (also known as orders after hearing) that may last up to five years but are renewable. (§§ 6345, 6302.)

1. Domestic abuse, coercive control, and financial abuse

According to Katie Ray-Jones, the National Domestic Violence Hotline’s Chief Executive, “‘[d]omestic violence is rooted in power and control.’”^[4] When abusers lose control of their intimate partners, they resort to a variety of tactics to subjugate them. The Center for Disease Control states that intimate partner violence may consist of physical violence, sexual violence, and psychological aggression, which includes expressive aggression (insulting, name calling) and coercive control (behaviors that involve monitoring, controlling, or threatening the victim).^[5] Coercive control encompasses a variety of behaviors aimed at overcoming a person’s free will and curtailing their personal liberty and sense of agency.

A pervasive form of coercive control is financial abuse, which refers to “behavior that seeks to control a person’s ability to acquire, use, or maintain economic resources, and threatens their self-sufficiency and financial autonomy.”^[6] An estimated 99 percent of domestic violence cases involve financial abuse.^[7] Examples of financial abuse include: forcing a partner to miss, leave, or be late to work; harassing a partner at work; controlling how money is spent; withholding money or basic living resources; giving a partner an ‘allowance’; stealing money, credit, property, or identity from a partner; and forcing a partner to file fraudulent legal financial documents or overspend on credit cards.^[8] The effects can devastate the victim and make them more vulnerable to further domestic abuse.

The California Partnership to End Domestic Violence, the bill’s sponsor, explains that financial abuse can include:

[S]tealing money, credit, property or identity from a partner; and/or forcing a partner to file fraudulent legal financial documents or overspend on credit cards. Abusive partners can incur debt without a survivor’s consent or coerce a survivor into incurring the debt, including by threats of harm. This debt and the credit score impact can have long-term consequences for survivors and create barriers to educational, housing and employment opportunities. . . . Research shows that access to economic resources is the most likely predictor of whether a survivor will be able to permanently separate form their abusive partners. (Footnotes omitted.)

Meanwhile, changes to everyday life associated with the COVID-19 pandemic have led to increased rates of domestic violence.^[9] Shelter-in-place orders, job losses, and school closures deteriorate strained relationships and keep victims confined with abusers. Many victims find it more difficult to seek help, escape to a safe location, report abuse to law enforcement, or go to court to get a restraining order. The California Partnership to End Domestic Violence adds that the economic vulnerabilities due to the current COVID-19 national health emergency put “survivors at risk of ending up further in poverty or returning to their abusive partners. Every step we take to improve economic security of survivors will help keep them safe during this already tumultuous time.”

1. Enables courts to declare specific debts were incurred as a result of domestic abuse

This bill provides an important tool for victims who are subjected to domestic violence in the form of financial abuse. Existing law provides that a court may issue a TRO determining the temporary use, possession, and control of real or personal property of the parties and the payment of liens or encumbrances coming due during the period the order is in effect. (§ 6324.) This bill would, beginning January 1, 2022, provide that a court may also issue such an order in a permanent restraining order. The bill also provides that such an order may include a finding that specific debts were incurred as a result of domestic violence and without the consent of the party, including the crime of identity theft under Penal Code section 530.5.^[10] This will empower courts to declare that a debt belongs to the abuser during the time the permanent restraining order is in effect.

The author writes: “AB 2517 will play a critical part in providing some protections judges can use in determining who is responsible for paying off the debt that happened. This bill is essential in helping survivors get back on track faster.”

While a finding pursuant to this bill is binding as to the parties, the victim may need to take additional action to protect themselves against claims from creditors. Civil Code section 1798.93 provides that a victim of identity theft can bring an action against a claimant and is entitled to various forms of relief, including a declaration that the claim is void and unenforceable as against the victim. Section 1798.93 also provides for a civil penalty for up to $30,000 if the victim establishes by clear and convincing evidence that the claimant continued to pursue their claim against the victim after being presented with facts that were later held to entitle the victim to a judgement under that section. A finding under this bill that a specific debt was incurred as a result of domestic violence would be probative, if not determinative, in a proceeding under section 1798.93.

Finally, the bill also provides that it does not affect the priority of any lien or other security interest. This amendment was taken to allay the concerns of the California Land Title Association, which, as a result, has taken a neutral position on the bill.

SUPPORT

California Partnership to End Domestic Violence (sponsor)

A Community for Peace

Alliance Against Family Violence and Sexual Assault

Asian Women’s Shelter

California Low-Income Consumer Coalition

Casa de Esperanza

Catalyst Domestic Violence Services

City and County of San Francisco, Department on the Status of Women

Community Overcoming Relationship Abuse

Community Resource Center

Disability Rights California

EndTAB

Haven Women’s Center of Stanislaus

House of Ruth

Interface Children & Family Services

Jewish Family Service of Los Angeles

Laura’s House

Majarjee Mason Center

National Association of Social Workers, California Chapter

Peace Over Violence

Project: PeaceMakers, Inc.

Rainbow Services, Ltd.

StrengthUnited

Walnut Avenue Family & Women’s Center

WEAVE

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation:

SB 1141 (Rubio, 2020) would provide that coercive control is a form of domestic abuse for purposes of the DVPA. This bill is pending consideration in the Assembly Judiciary Committee.

AB 1796 (Levine, 2020) would require courts to courts to provide a drop box, during and after business hours, for the filing of petitions for domestic violence restraining orders. AB 1796 is being heard in this Committee on the same day as this bill.

Prior Legislation: None known

PRIOR VOTES:

Assembly Floor (Ayes 79, Noes 0)

Assembly Appropriations Committee (Ayes 18, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

**************

1. National Network to End Domestic Violence, Financial Abuse Fact Sheet, available at https://nnedv.org/wp-content/uploads/2019/07/Library_EJ_Financial_Abuse_Fact_Sheet.pdf (as of July 16, 2020). ↑

2. All further statutory references are to the Family Code, unless otherwise specified. ↑

3. A TRO is distinct from an “emergency protective order,” which is an order specifically requested by a law enforcement official and that a judicial officer finds necessary to prevent the occurrence or recurrence of domestic violence, child abuse, child abduction, or abuse of an elder or dependent adult. (§§ 6250, 6250.3, 6251.) An emergency protective order is not subject to the provisions governing TROs. (See § 240.) ↑

4. Newberry, Laura & Santa Cruz, Nicole, Domestic abuse victims in ‘worst-case scenario’ during outbreak, providers say (March 24, 2020) Los Angeles Times, available at https://www.latimes.com/california/story/2020-03-24/womens-shelters-brace-for-surge-in-domestic-violence-as-coronavirus-quarantines-isolate-survivors (as of July 16, 2020). ↑

5. The National Intimate Partner and Sexual Violence Survey: 2010-2012 State Report (April 2017), p. 14, available at https://www.cdc.gov/violenceprevention/pdf/NISVS-StateReportBook.pdf (as of July 16, 2020). ↑

6. National Network to End Domestic Violence, Financial Abuse Fact Sheet, available at https://nnedv.org/wp-content/uploads/2019/07/Library_EJ_Financial_Abuse_Fact_Sheet.pdf (as of July 16, 2020). ↑

7. Id. ↑

8. Id. ↑

9. Newberry, Laura & Santa Cruz, Nicole, Domestic abuse victims in ‘worst-case scenario’ during outbreak, providers say (March 24, 2020) Los Angeles Times, available at https://www.latimes.com/california/story/2020-03-24/womens-shelters-brace-for-surge-in-domestic-violence-as-coronavirus-quarantines-isolate-survivors (as of July 16, 2020). ↑

10. That section makes it a crime for a person to willfully obtain personal identifying information of another person and use that information for any unlawful purpose, including obtaining, or attempting to obtain, credit, goods, services, real property, or medical information without the consent of that person. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 2517

Author:(Gloria)

As Amended Ver:June 8, 2020

Majority vote

SUMMARY:

Allows a court, effective January 1, 2022, to make a finding in a domestic violence restraining order issued after notice and a hearing that specific debts were incurred as a result of domestic violence.

Major Provisions

1. Allows a court, effective January 1, 2022, to issue an order, after notice and a hearing for a domestic violence restraining order, determining the use, possession, and control of real or personal property of the parties to the restraining order during the period the order is in effect, and the payment of any liens or encumbrances coming due during the period that the restraining order is in effect.
2. Allows the court, effective January 1, 2022, to include in an order under 1), above, a finding that specific debts were incurred as the result of domestic violence and without the consent of a party. Provides that acts that support this finding may include, but are not limited to, obtaining a party's personal identifying information and using it for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person. Provides that the finding does not affect the priority of any lien or other security interest.
3. Requires the Judicial Council to adopt and/or modify any forms necessary to effectuate this bill.

COMMENTS:

In addition to physical abuse, an abusive partner can financially abuse their victim by, among other things, forbidding the victim from working or sabotaging their work, controlling how money is spent, withholding money for basic family expenses, such as food, shelter and medicine, not allowing the victim to access bank accounts or to make any financial decisions, forcing the victim to file fraudulent tax returns, running up large amounts of debt on joint accounts, refusing to pay bills, and ruining the victims' credit score. One study found that nearly every victim of domestic violence has also been economically abused.

This bill seeks to protect victims of domestic violence from being financially abused by their abusers and provide a remedy to address the situation if needed by first clarifying that a restraining order issued under the Domestic Violence Prevention Act (DVPA) after notice and a hearing can determine the use, possession, and control of real or personal property of the parties to the restraining order during the period the order is in effect, and also the payment of any liens or encumbrances coming due during that same time period. More importantly, the bill allows the court to include in the restraining order a finding that specific debts were incurred as the result of domestic violence and without the consent of the victim, including an act of identity theft.

Financial abuse is a form of domestic violence. Abusers may, in addition to physically or psychologically abusing their victims, financially abuse them as well. One study of survivors of domestic violence found that 98% had been physically abuse and 99% had been economically abused. (Adrienne Adams, et al., Development of the Scale of Economic Abuse, Violence Against Women, 14(5), 563 (2008).) Abusers typically use violence or threats of violence, whether subtle or not, to keep their victims from working or having access to money, thus ensuring that they have financial control of their victim. Financial abuse can include forbidding a victim to work or sabotaging their work or employment, controlling how money is spent, withholding money for basic family expenses, such as food, shelter and medicine, not allowing the victim access to bank accounts or make any financial decisions, forcing the victim file fraudulent tax returns, running up large amounts of debt on joint accounts, refusing to pay bills, and ruining their victims' credit score.

An abuser can also create personal debt for their victim or force the victim to create the debt themselves, creating additional financial abuse and potential causing long-term harm to the victim and their children. Also called coercive debt, this includes all nonconsensual, credit related transactions. Writes one researcher of this situation: "[C]urrent policies relating to personal debt do not consider the possibility that the debt may have been generated through coercion, fraud, or threat of harm. Survivors' short-term safety and long-term financial well-being would be enhanced by policies that take into account how personal debts were generated and that create avenues for debt forgiveness or restructuring." (Adrienne Adams, Measuring the Effects of Domestic Violence on Women's Financial Well-Being, CFS Research Brief 2011-5.6, p. 5 (Center for Financial Security, University of Wisconsin-Madison 2011).) This bill seeks to do just that.

This bill expands the ability to divide property and debt as part of a restraining order. Under existing law, a court may issue an ex parte order determining the temporary use, possession, and control of the real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the temporary order is in effect. (Family Code Section 6324.) The temporary order only lasts 21 days or, if there is good cause, 25 days. (Family Code Section 6320.5.) Note, during the COVID-19 pandemic, the California Supreme Court has issued emergency statewide orders extending the time period of temporary restraining orders issued or set to expire during the state of emergency to be continued "for a period of time that the court determines is sufficient to allow for a hearing on the long-term order to occur, for up to 90 days." (California Supreme Court, Emergency Rule No. 8 (b)(2), effective April 6, 2020.)

The court is also able, after notice and a hearing, to issue any domestic violence restraining order that could be issued ex parte, which includes an order determining the temporary use, possession, and control of the real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the order is in effect. (Family Code Section 6340.) An order after a hearing -- a personal conduct, stay-away, and residence exclusion order -- can last no more than five years, but it can be renewed for either five years or permanently, without a showing of further abuse since the issuance of the original order and subject to termination or modification by further order of the court. (Family Code Section 6345 (a).) However, the duration of any orders, other than those protective orders, that are also contained in a court order issued after notice and a hearing, including, but not limited to, orders for custody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects. (Family Code Section 6345 (b).) Note, during the COVID-19 pandemic, the California Supreme Court emergency order extends the time period of orders issued after a hearing that are set to expire during the state of emergency to be automatically extended "for up to 90 days from the date of expiration to enable a protected party to seek a renewal of the restraining order." (California Supreme Court, Emergency Rule No. 8 (b)(4), effective April 6, 2020.)

This bill clarifies that an order determining the use, possession, and control of real or personal property of the parties is effective during the period the order is in effect, as is any order impacting the payment of any liens or encumbrances coming due during that same period. This ensures that the court establishing the protective order can also determine whose debt is whose and help protect a victim of financial abuse, whether for five years or even, potentially, permanently.

More importantly, the bill allows a court to include in the protective order after hearing a finding that specific debts were incurred as the result of domestic violence and without the consent of one of the parties. Specifically, the bill provides that acts that support a finding that a debt was incurred as the result of domestic violence may include, but are not limited to, obtaining a party's personal identifying information and using it for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.

To help ensure the continued validity of any lien or security interest subject to a finding under the bill, and to address a concern that had been raised by the California Land Title Association (CLTA), the most recent amendments to the bill specify that any finding made by a court will not affect the priority of any lien or other security interest. With this amendment, CLTA agreed to change its position on the bill from oppose unless amended to neutral.

Finally, the bill requires the Judicial Council to update its forms based on the bill's provisions so that victims can easily seek the relief they are entitled to under the bill. This provision is particularly important since the vast majority of victims of domestic violence (up to 90% or even more by Judicial Council estimates) are unrepresented and must try, the best they are able, to seek relief on their own.

According to the Author:

Financial abuse is a very harmful component of domestic violence. It occurs in 99% of domestic violence cases and can include stealing money, credit, property, or identity from a partner; and/or forcing a partner to file fraudulent legal financial documents or overspend on credit cards. AB 2517 will play a critical part in providing some protections judges can use in determining who is responsible for paying off the debt that happened. This bill is essential in helping survivors get back on track faster.

Arguments in Support:

The bill's sponsor, the California Partnership to End Domestic Violence, writes in support:

This bills aims to help survivors who have experienced [financial] abuse by establishing some protections the court can use in determining who is responsible for paying off the incurred debt. Currently Domestic Violence Restraining Orders allows judges to assign specific debts to be paid by the restrained party. By adding space for the judge to also identify which debts were incurred as a result of the domestic violence and through theft of the protected party's identity, the survivor will be able to use the restraining order as proof for civil debt relief under Civil 1798.93 which requires a person to establish a preponderance of the evidence. The COVID-19 pandemic created or deepened economic hardships for thousands of Californians, including survivors and their families. These economic vulnerabilities put survivors at risk of ending up further in poverty or returning to their abusive partners. Every step we take to improve economic security of survivors will help keep them safe during this already tumultuous time.

The California Low-Income Consumer Coalition adds:

Financial abuse occurs in the great majority of domestic violence cases and can include stealing money, credit, property, or identity from a partner. It may also include forcing a partner to file fraudulent legal financial documents or overspend on credit cards. Abusive partners can incur debt without a survivor's consent, or coerce a survivor into incurring the debt by threats of harm. This debt and the credit score impact can have long-term consequences for survivors, and create barriers to educational, housing, and employment opportunities. Since these debts are incurred through the abusive partner stealing the survivor's identity, it is important for survivors to have the tools to access existing federal and state protections for identity theft and debt defense.

Enacting this legislation will help survivors who have experienced such abuse by establishing protections the court can use in determining who is responsible for the incurred debt. Currently, Domestic Violence Restraining Orders allow the judge to assign specific debts to be paid by the restrained party. By adding a space for the judge to also identify which debts were incurred because of the domestic violence and through theft of the survivor's identity, the survivor will be able to use the restraining order as documentation for civil debt relief protections under current law, which requires a person to have proof of the abuse. This new regime would also allow survivors to provide the restraining order to creditors to notify them of the identity theft.

Arguments in Opposition:

None on file

FISCAL COMMENTS:

According to the Assembly Appropriations committee, minor and absorbable costs (GF/Trial Court Trust fund) to the courts in additional workload to make findings regarding the origins of specified debt in domestic violence cases and for Judicial Council to modify existing forms.

VOTES:

ASM JUDICIARY: 11-0-0

YES: Mark Stone, Gallagher, Chau, Chiu, Gonzalez, Holden, Kalra, Kiley, Maienschein, Obernolte, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

UPDATED:

VERSION: June 8, 2020

CONSULTANT: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002993

ASSEMBLY THIRD READING

ATR Bill Id:AB 2517

Author:(Gloria)

As Amended Ver:May 13, 2020

Majority vote

SUMMARY:

Allows a court, effective January 1, 2022, to make a finding in a domestic violence restraining order issued after notice and a hearing that specific debts were incurred as a result of domestic violence.

Major Provisions

1. Allows a court, effective January 1, 2022, to issue an order, after notice and a hearing for a domestic violence restraining order, determining the use, possession, and control of real or personal property of the parties to the restraining order during the period the order is in effect, and the payment of any liens or encumbrances coming due during the period that the restraining order is in effect.
2. Allows the court, effective January 1, 2022, to include in an order under 1), above, a finding that specific debts were incurred as the result of domestic violence and without the consent of a party. Provides that acts that support this finding may include, but are not limited to, obtaining a party's personal identifying information and using it for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.
3. Requires the Judicial Council to adopt and/or modify any forms necessary to effectuate this bill.

COMMENTS:

In addition to physical abuse, an abusive partner can financially abuse their victim by, among other things, forbidding the victim from working or sabotaging their work, controlling how money is spent, withholding money for basic family expenses, such as food, shelter and medicine, not allowing the victim to access bank accounts or to make any financial decisions, forcing the victim to file fraudulent tax returns, running up large amounts of debt on joint accounts, refusing to pay bills, and ruining the victims' credit score. One study found that nearly every victim of domestic violence has also been economically abused.

This bill seeks to protect victims of domestic violence from being financially abused by their abusers and provide a remedy to address the situation if needed by first clarifying that a restraining order issued under the Domestic Violence Prevention Act (DVPA) after notice and a hearing can determine the use, possession, and control of real or personal property of the parties to the restraining order during the period the order is in effect, and also the payment of any liens or encumbrances coming due during that same time period. More importantly, the bill allows the court to include in the restraining order a finding that specific debts were incurred as the result of domestic violence and without the consent of the victim, including an act of identity theft.

Financial abuse is a form of domestic violence. Abusers may, in addition to physically or psychologically abusing their victims, financially abuse them as well. One study of survivors of domestic violence found that 98% had been physically abuse and 99% had been economically abused. (Adrienne Adams, et al., Development of the Scale of Economic Abuse, Violence Against Women, 14(5), 563 (2008).) Abusers typically use violence or threats of violence, whether subtle or not, to keep their victims from working or having access to money, thus ensuring that they have financial control of their victim. Financial abuse can include forbidding a victim to work or sabotaging their work or employment, controlling how money is spent, withholding money for basic family expenses, such as food, shelter and medicine, not allowing the victim access to bank accounts or make any financial decisions, forcing the victim file fraudulent tax returns, running up large amounts of debt on joint accounts, refusing to pay bills, and ruining their victims' credit score.

An abuser can also create personal debt for their victim or force the victim to create the debt themselves, creating additional financial abuse and potential causing long-term harm to the victim and their children. Also called coercive debt, this includes all nonconsensual, credit related transactions. Writes one researcher of this situation: "[C]urrent policies relating to personal debt do not consider the possibility that the debt may have been generated through coercion, fraud, or threat of harm. Survivors' short-term safety and long-term financial well-being would be enhanced by policies that take into account how personal debts were generated and that create avenues for debt forgiveness or restructuring." (Adrienne Adams, Measuring the Effects of Domestic Violence on Women's Financial Well-Being, CFS Research Brief 2011-5.6, p. 5 (Center for Financial Security, University of Wisconsin-Madison 2011).) This bill seeks to do just that.

This bill expands the ability to divide property and debt as part of a restraining order. Under existing law, a court may issue an ex parte order determining the temporary use, possession, and control of the real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the temporary order is in effect. (Family Code Section 6324.) The temporary order only lasts 21 days or, if there is good cause, 25 days. (Family Code Section 6320.5.) Note, during the COVID-19 pandemic, the California Supreme Court has issued emergency statewide orders extending the time period of temporary restraining orders issued or set to expire during the state of emergency to be continued "for a period of time that the court determines is sufficient to allow for a hearing on the long-term order to occur, for up to 90 days." (California Supreme Court, Emergency Rule No. 8 (b)(2), effective April 6, 2020.)

The court is also able, after notice and a hearing, to issue any domestic violence restraining order that could be issued ex parte, which includes an order determining the temporary use, possession, and control of the real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the order is in effect. (Family Code Section 6340.) An order after a hearing -- a personal conduct, stay-away, and residence exclusion order -- can last no more than five years, but it can be renewed for either five years or permanently, without a showing of further abuse since the issuance of the original order and subject to termination or modification by further order of the court. (Family Code Section 6345 (a).) However, the duration of any orders, other than those protective orders, that are also contained in a court order issued after notice and a hearing, including, but not limited to, orders for custody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects. (Family Code Section 6345 (b).) Note, during the COVID-19 pandemic, the California Supreme Court emergency order extends the time period of orders issued after a hearing that are set to expire during the state of emergency to be automatically extended "for up to 90 days from the date of expiration to enable a protected party to seek a renewal of the restraining order." (California Supreme Court, Emergency Rule No. 8 (b)(4), effective April 6, 2020.)

This bill clarifies that an order determining the use, possession, and control of real or personal property of the parties is effective during the period the order is in effect, as is any order impacting the payment of any liens or encumbrances coming due during that same period. This ensures that the court establishing the protective order can also determine whose debt is whose and help protect a victim of financial abuse, whether for five years or even, potentially, permanently.

More importantly, the bill allows a court to include in the protective order after hearing a finding that specific debts were incurred as the result of domestic violence and without the consent of one of the parties. Specifically, the bill provides that acts that support a finding that a debt was incurred as the result of domestic violence may include, but are not limited to, obtaining a party's personal identifying information and using it for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.

Finally, the bill requires the Judicial Council to update its forms based on the bill's provisions so that victims can easily seek the relief they are entitled to under the bill. This provision is particularly important since the vast majority of victims of domestic violence (up to 90% or even more by Judicial Council estimates) are unrepresented and must try, the best they are able, to seek relief on their own.

According to the Author:

Financial abuse is a very harmful component of domestic violence. It occurs in 99% of domestic violence cases and can include stealing money, credit, property, or identity from a partner; and/or forcing a partner to file fraudulent legal financial documents or overspend on credit cards. AB 2517 will play a critical part in providing some protections judges can use in determining who is responsible for paying off the debt that happened. This bill is essential in helping survivors get back on track faster.

Arguments in Support:

The bill's sponsor, the California Partnership to End Domestic Violence, writes in support:

This bills aims to help survivors who have experienced [financial] abuse by establishing some protections the court can use in determining who is responsible for paying off the incurred debt. Currently Domestic Violence Restraining Orders allows judges to assign specific debts to be paid by the restrained party. By adding space for the judge to also identify which debts were incurred as a result of the domestic violence and through theft of the protected party's identity, the survivor will be able to use the restraining order as proof for civil debt relief under Civil 1798.93 which requires a person to establish a preponderance of the evidence. The COVID-19 pandemic created or deepened economic hardships for thousands of Californians, including survivors and their families. These economic vulnerabilities put survivors at risk of ending up further in poverty or returning to their abusive partners. Every step we take to improve economic security of survivors will help keep them safe during this already tumultuous time.

Adds the California Low-Income Consumer Coalition:

Financial abuse occurs in the great majority of domestic violence cases and can include stealing money, credit, property, or identity from a partner. It may also include forcing a partner to file fraudulent legal financial documents or overspend on credit cards. Abusive partners can incur debt without a survivor's consent, or coerce a survivor into incurring the debt by threats of harm. This debt and the credit score impact can have long-term consequences for survivors, and create barriers to educational, housing, and employment opportunities. Since these debts are incurred through the abusive partner stealing the survivor's identity, it is important for survivors to have the tools to access existing federal and state protections for identity theft and debt defense.

Enacting this legislation will help survivors who have experienced such abuse by establishing protections the court can use in determining who is responsible for the incurred debt. Currently, Domestic Violence Restraining Orders allow the judge to assign specific debts to be paid by the restrained party. By adding a space for the judge to also identify which debts were incurred because of the domestic violence and through theft of the survivor's identity, the survivor will be able to use the restraining order as documentation for civil debt relief protections under current law, which requires a person to have proof of the abuse. This new regime would also allow survivors to provide the restraining order to creditors to notify them of the identity theft.

Arguments in Opposition:

The California Land Title Association (CLTA), which represents the title insurance industry, opposes the bill unless it is amended to specifically prevent a court, as part of a domestic violence order determining the use, possession, and control of real or personal property of the parties, from invalidating a transfer, encumbrance, or conveyance of real property. CLTA explains its concerns with the bill as now in print:

While we support the underlying purpose of the bill, we strongly oppose the bill's lack of an express provision clarifying that a court could not invalidate a properly executed and recorded lien in issuing a ruling determining the temporary use, possession, and control of real property. Without such a provision, AB 2517 stands to create a new class of victim in the form of adversely affected innocent third parties that have unknowingly engaged in transactions involving real property subject to liens that were incurred in connection with instances of domestic violence. . . .

If lenders are forced to view every loan secured by real property, such as a second mortgage or home equity line of credit, as one that could be potentially invalidated due to acts outside their knowledge, loans could become more difficult or costly to obtain, thereby negatively impacting all California consumers seeking to utilize those funds for various uses, such as home improvements, paying off higher-interest debts, etc.

FISCAL COMMENTS:

According to the Assembly Appropriations committee, minor and absorbable costs (GF/Trial Court Trust fund) to the courts in additional workload to make findings regarding the origins of specified debt in domestic violence cases and for Judicial Council to modify existing forms.

VOTES:

ASM JUDICIARY: 11-0-0

YES: Mark Stone, Gallagher, Chau, Chiu, Gonzalez, Holden, Kalra, Kiley, Maienschein, Obernolte, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

UPDATED:

VERSION: May 13, 2020

CONSULTANT: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002805

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2517

Author:(Gloria) – As Amended Ver:May 13, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill authorizes, on and after January 1, 2022, a court to include a finding that specific debts were incurred as the result of domestic violence and without the consent of the petitioner. This bill also requires Judicial Council to adopt and modify forms to allow courts to make a finding regarding specific debts incurred as a result of domestic violence.

FISCAL EFFECT:

Minor and absorbable costs (GF/Trial Court Trust fund) to the courts in additional workload to make findings regarding the origins of specified debt in domestic violence cases and for Judicial Council to modify existing forms.

COMMENTS:

1. Purpose and Background. According to the author:

Financial abuse is a very harmful component of domestic violence. AB 2517 will play a critical part in providing some protections judges can use in determining who is responsible for paying off the debt that happened. This bill is essential in helping survivors get back on track faster.

Financial abuse can include forbidding a victim to work or sabotaging their work or employment, controlling how money is spent, withholding money for basic family expenses, such as food, shelter and medicine, not allowing the victim access to bank accounts or make any financial decisions, forcing the victim file fraudulent tax returns, running up large amounts of debt on joint accounts, refusing to pay bills and ruining their victims’ credit score.

1. Arguments in Support. According to the California Low-Income Consumer Coalition:

Currently, Domestic Violence Restraining Orders allow the judge to assign specific debts to be paid by the restrained party. By adding a space for the judge to also identify which debts were incurred because of the domestic violence and through theft of the survivor’s identity, the survivor will be able to use the restraining order as documentation for civil debt relief protections under current law, which requires a person to have proof of the abuse.

1. Arguments in Opposition. According to the California Land Title Association:

AB 2517 stands to create a new class of victim in the form of adversely affected innocent third parties that have unknowingly engaged in transactions involving real property subject to liens that were incurred in connection with instances of domestic violence.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: May 11, 2020

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2517

Author:(Gloria) – As Amended Ver:May 5, 2020

As Proposed to be Amended

SUBJECT: DOMESTIC VIOLENCE: PERSONAL PROPERTY AND LIENS

KEY ISSUE: SHOULD VICTIMS OF DOMESTIC VIOLENCE BE PROTECTED FROM THIRD-PARTY CREDITORS WHEN THEIR ABUSERS HAVE STOLEN THEIR IDENTITIES AND INCURRED DEBTS IN THEIR NAMES?

SYNOPSIS

In addition to physical abuse, an abusive partner can financially abuse their victim by, among other things, forbidding the victim from working or sabotaging their work, controlling how money is spent, withholding money for basic family expenses, such as food, shelter and medicine, not allowing the victim to access bank accounts or to make any financial decisions, forcing the victim to file fraudulent tax returns, running up large amounts of debt on joint accounts, and ruining the victims’ credit score. One study has found that nearly every victim of domestic violence has also been economically abused.

This bill seeks to protect victims of domestic violence from being financially abused by their abusers and provides a remedy to address the situation, if needed, by first clarifying that a restraining order issued under the Domestic Violence Protection Act after notice and a hearing can determine the use, possession, and control of real or personal property of the parties to the restraining order during the period the order is in effect, and also the payment of any liens or encumbrances coming due during that same time period. More importantly, the bill allows the court to include in the restraining order a finding that specific debts were incurred as the result of domestic violence and without the consent of the victim, including through identity theft. This should help protect victims against third-party creditors.

The author notes that this bill will “play a critical part in providing some protections judges can use in determining who is responsible for paying off the debt” caused by the domestic violence, and the “bill is essential in helping survivors get back on track faster.” The California Partnership to End Domestic Violence, the bill’s sponsor, adds that the economic vulnerabilities due to the current COVID-19 national health emergency puts “survivors at risk of ending up further in poverty or returning to their abusive partners. Every step we take to improve economic security of survivors will help keep them safe during this already tumultuous time.” This bill is supported by groups that advocate on behalf of survivors of domestic violence.

The bill is opposed by the California Land Title Association (CLTA) unless it specifically prohibits a court, as part of a domestic violence order determining the use, possession, and control of real or personal property of the parties, from invalidating the transfer, encumbrance, or conveyance of real property. CLTA argues that this is necessary to protect creditors and innocent purchasers, but it could, unfortunately, protect financial abusers from the harm that their abuse has caused and make victims responsible for debt that they did not knowingly and willingly accrue.

SUMMARY: Allows a court, effective January 1, 2022, to make a finding in a domestic violence restraining order issued after notice and a hearing that specific debts were incurred as a result of domestic violence. Specifically, this bill:

1. Allows a court, effective January 1, 2022, to issue an order, after notice and a hearing for a domestic violence restraining order, determining the use, possession, and control of real or personal property of the parties to the restraining order during the period the order is in effect, and the payment of any liens or encumbrances coming due during the period that the restraining order is in effect.
2. Allows the court, effective January 1, 2022, to include in an order under 1), above, a finding that specific debts were incurred as the result of domestic violence and without the consent of a party. Provides that acts that support this finding may include, but are not limited to, obtaining a party’s personal identifying information and using it for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.
3. Requires the Judicial Council to adopt and/or modify any forms necessary to effectuate this bill.

EXISTING LAW:

1. Authorizes a court, under the Domestic Violence Protection Act (DVPA), to issue and enforce domestic violence restraining orders, including emergency protective orders (EPOs), temporary restraining orders (TROs), and longer-term or permanent restraining orders (also known as orders after hearing). (Family Code Sections 6200 et seq. Unless stated otherwise, all further statutory references are to the Family Code.)
2. Permits a court to issue a domestic violence protective order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning, destroying personal property, contacting, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members. (Family Code Section 6240 et seq., Section 6320 et seq., and Section 6340 et seq.)
3. Permits a court, when issuing an ex parte protective order, to determine the temporary use, possession, and control of the real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the order is in effect. (Section 6324.)
4. Allows a court, after notice and a hearing, to issue any domestic violence restraining order that could be issued ex parte. Allows such an order to last no more than five years. Allows these orders to be renewed either for five years or permanently. (Sections 6340.)
5. After notice and a hearing, allows a court to issue an order that restitution be paid to the petitioner for loss of earnings and out-of-pocket expenses, including, but not limited to, expenses for medical care and temporary housing, incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse. (Section 6342.)
6. Provides that the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing may, in the discretion of the court, last no more than five years. Allows these orders to be renewed either for five years or permanently. (Section 6345 (a).)
7. Provides that, notwithstanding 6), above, the duration of any orders, other than the protective orders described in 6), that are also contained in a court order issued after a domestic violence notice and hearing, including, but not limited to, orders for custody, visitation, support, and disposition of property, are governed by the law relating to those specific subjects. (Section 6345 (b).)
8. Allows a person to bring a claim against a claimant, or a cross-complaint if the claimant has brought an action to recover on its claim, to establish that the person is a victim of identity theft in connection with the claimant’s claim. Requires the person to establish identity theft by a preponderance of the evidence. Provides that a person who establishes that they are a victim of identity theft is entitled to all of the following, as appropriate:
   1. A declaration that they are not obligated to the claimant on that claim;
   2. A declaration that any security interest or other interest the claimant had purportedly obtained in the victim’s property in connection with that claim is void and unenforceable;
   3. An injunction restraining the claimant from collecting or attempting to collect from the victim on that claim, from enforcing or attempting to enforce any security interest or other interest in the victim’s property in connection with that claim, or from enforcing or executing on any judgment against the victim on that claim;
   4. If the victim has filed a cross-complaint against the claimant, the dismissal of any cause of action in the complaint filed by the claimant based on a claim which arose as a result of the identity theft;
   5. Actual damages, attorney’s fees, and costs, as provided, and any equitable relief that the court deems appropriate; and
   6. A civil penalty, in addition to any other damages, of up to $30,000 if the victim establishes by clear and convincing evidence that they provided the claimant with notice of the identity theft, the claimant failed to diligently investigate the victim’s notice, and the claimant continued to pursue its claim against the victim after the claimant was presented with facts that were later held to entitle the victim to a judgment pursuant to this provision. (Civil Code Section 1798.93.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: In addition to physical abuse, an abusive partner can financially abuse their victim by, among other things, forbidding the victim from working or sabotaging their work, controlling how money is spent, withholding money for basic family expenses, such as food, shelter and medicine, not allowing the victim to access bank accounts or to make any financial decisions, forcing the victim to file fraudulent tax returns, running up large amounts of debt on joint accounts, refusing to pay bills, and ruining the victims’ credit score. One study found that nearly every victim of domestic violence has also been economically abused.

This bill seeks to protect victims of domestic violence from being financially abused by their abusers and provide a remedy to address the situation if needed by first clarifying that a restraining order issued under the DVPA after notice and a hearing can determine the use, possession, and control of real or personal property of the parties to the restraining order during the period the order is in effect, and also the payment of any liens or encumbrances coming due during that same time period. More importantly, the bill allows the court to include in the restraining order a finding that specific debts were incurred as the result of domestic violence and without the consent of the victim, including an act of identity theft.

In support of the bill, the author states:

Financial abuse is a very harmful component of domestic violence. It occurs in 99% of domestic violence cases and can include stealing money, credit, property, or identity from a partner; and/or forcing a partner to file fraudulent legal financial documents or overspend on credit cards. AB 2517 will play a critical part in providing some protections judges can use in determining who is responsible for paying off the debt that happened. This bill is essential in helping survivors get back on track faster.

Impacts of domestic violence are widespread. Domestic violence is a serious criminal justice and public health problem most often perpetrated against women. (U.S. Department of Justice, Nature and Consequences of Intimate Partner Violence: Findings from the National Violence against Women Survey (2001).) According to the National Intimate Partner and Sexual Violence Survey, more than one in every three women and about one in every three men in the United States have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime. (Sharon Smith, et al., The National Intimate Partner and Sexual Violence Survey: 2015 Data Brief – Updated Release, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, pp. 8-9 (Nov. 2018).) Over a third of all women in the U.S. have experienced some form of psychological aggression by an intimate partner during their lifetime, including 31 percent who experience some form of coercive control. (Id. at 21.) These abuses take various forms, but all of them exert a severe negative impact on the psychological and/or physical health of the victim.

Financial abuse is a form of domestic violence. Abusers may, in addition to physically or psychologically abusing their victims, financially abuse them as well. One study of survivors of domestic violence found that 98 percent had been physically abuse and 99 percent had been economically abused. (Adrienne Adams, et al., Development of the Scale of Economic Abuse, Violence Against Women, 14(5), 563 (2008).) Abusers typically use violence or threats of violence, whether subtle or not, to keep their victims from working or having access to money, thus ensuring that they have financial control of their victim. Financial abuse can include forbidding a victim to work or sabotaging their work or employment, controlling how money is spent, withholding money for basic family expenses, such as food, shelter and medicine, not allowing the victim access to bank accounts or make any financial decisions, forcing the victim file fraudulent tax returns, running up large amounts of debt on joint accounts, refusing to pay bills, and ruining their victims’ credit score.

An abuser can also create personal debt for their victim or force the victim to create the debt themselves, creating additional financial abuse and potential causing long-term harm to the victim and their children. Also called coercive debt, this includes all nonconsensual, credit related transactions. Writes one researcher of this situation: “[C]urrent policies relating to personal debt do not consider the possibility that the debt may have been generated through coercion, fraud, or threat of harm. Survivors’ short-term safety and long-term financial well-being would be enhanced by policies that take into account how personal debts were generated and that create avenues for debt forgiveness or restructuring.” (Adrienne Adams, Measuring the Effects of Domestic Violence on Women’s Financial Well-Being, CFS Research Brief 2011-5.6, p. 5 (Center for Financial Security, University of Wisconsin-Madison 2011).) This bill seeks to do just that.

The California Partnership to End Domestic Violence, the bill’s sponsor, explains that financial abuse can include:

[S]tealing money, credit, property or identity from a partner; and/or forcing a partner to file fraudulent legal financial documents or overspend on credit cards. Abusive partners can incur debt without a survivor’s consent or coerce a survivor into incurring the debt, including by threats of harm. This debt and the credit score impact can have long-term consequences for survivors and create barriers to educational, housing and employment opportunities. . . . Research shows that access to economic resources is the most likely predictor of whether a survivor will be able to permanently separate form their abusive partners. (Footnotes omitted.)

This bill expands the ability to divide property and debt as part of a restraining order. Under existing law, a court may issue an ex parte order determining the temporary use, possession, and control of the real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the temporary order is in effect. (Section 6324.) The temporary order only lasts 21 days or, if there is good cause, 25 days. (Section 6320.5.) Note, during the COVID-19 pandemic, the California Supreme Court has issued emergency statewide orders extending the time period of temporary restraining orders issued or set to expire during the state of emergency to be continued “for a period of time that the court determines is sufficient to allow for a hearing on the long-term order to occur, for up to 90 days.” (California Supreme Court, Emergency Rule No. 8 (b)(2), effective April 6, 2020.)

The court is also able, after notice and a hearing, to issue any domestic violence restraining order that could be issued ex parte, which includes an order determining the temporary use, possession, and control of the real or personal property of the parties and the payment of any liens or encumbrances coming due during the period the order is in effect. (Section 6340.) An order after a hearing -- a personal conduct, stay-away, and residence exclusion order -- can last no more than five years, but it can be renewed for either five years or permanently, without a showing of further abuse since the issuance of the original order and subject to termination or modification by further order of the court. (Section 6345 (a).) However, the duration of any orders, other than those protective orders, that are also contained in a court order issued after notice and a hearing, including, but not limited to, orders for custody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects. (Section 6345 (b).) Note, during the COVID-19 pandemic, the California Supreme Court emergency order extends the time period of orders issued after a hearing that are set to expire during the state of emergency to be automatically extended “for up to 90 days from the date of expiration to enable a protected party to seek a renewal of the restraining order.” (California Supreme Court, Emergency Rule No. 8 (b)(4), effective April 6, 2020.)

This bill clarifies that an order determining the use, possession, and control of real or personal property of the parties is effective during the period the order is in effect, as is any order impacting the payment of any liens or encumbrances coming due during that same period. This ensures that the court establishing the protective order can also determine whose debt is whose and help protect a victim of financial abuse, whether for five years or even, potentially, permanently.

More importantly, the bill allows a court to include in the protective order after hearing a finding that specific debts were incurred as the result of domestic violence and without the consent of one of the parties. Specifically, the bill provides that acts that support a finding that a debt was incurred as the result of domestic violence may include, but are not limited to, obtaining a party’s personal identifying information and using it for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.

Finally, the bill requires the Judicial Council to update its forms based on the bill’s provisions so that victims can easily seek the relief they are entitled to under the bill. This provision is particularly important since the vast majority of victims of domestic violence (up to 90 percent or even more by Judicial Council estimates) are unrepresented and must try, the best they are able, to seek relief on their own.

Existing law provides protections against third-party creditors in cases of identity theft, and this bill would help victims of domestic violence who are also victims of identity theft. Under Civil Code Section 1798.93, a victim of identity theft may bring an independent action, or file a cross-claim in an action by a creditor to collect on a debt, to establish that they are a victim of identity theft and thus not liable for the debt. If they can establish this by a preponderance of the evidence, they are entitled to all of the following, as appropriate:

• 1. A declaration that they are not obligated to the creditor on that claim;
  2. A declaration that any security interest or other interest the creditor had purportedly obtained in their property in connection with that claim is void and unenforceable;
  3. An injunction restraining the creditor from collecting or attempting to collect from them in any way on that claim;
  4. If they filed a cross-complaint against the creditor, the dismissal of any cause of action in the complaint filed by the creditor based on a claim which arose as a result of the identity theft;
  5. Actual damages, attorney’s fees, and costs, as provided, and any equitable relief that the court deems appropriate; and
  6. A civil penalty, in addition to any other damages, of up to $30,000 if they can establish by clear and convincing evidence that they provided the creditor with notice of the identity theft, the creditor failed to diligently investigate their notice, and the creditor continued to pursue its claim against them after the creditor was presented with facts that were later held to entitle them to a judgment in their favor.

As discussed above, this bill allows a family court to include in a protective order, issued after notice and a hearing, a finding that specific debts were incurred as the result of domestic violence and without the consent of a party. The bill specifically provides that acts that support such a finding can include, but are not limited to, obtaining a party’s personal identifying information and using it for any unlawful purpose, such as an abuser getting a credit card in their victim’s name without their victim’s consent. Used together with the relief provided to victims of identity theft in Civil Code Section 1798.93, this should help protect domestic violence victims from third parties who go after them to collect on debt that was unlawfully established in their name. This is broad relief that should help provide protection, from third-party creditors, for victims of financial abuse whose abusers have stolen their identity and established debt in their names. This will help these victims and their families regain their economic security and help keep them from reunifying with their abusers for financial support.

Are third-party creditors bound by the court’s holding? Concern may be raised that a creditor who had no way of knowing that debt was accrued through domestic violence and identity theft is innocent as well and should not be prevented from collecting on credit that it believes it rightfully extended to the survivor. Moreover, it is unfair to bind the creditor by a decision made by the family court in the domestic violence action that the creditor was not a party to.

It is true that a creditor would not necessarily be bound by the family court’s decision. Res judicata, or claims preclusion in California, prevents parties from relitigating that same cause of action that has been resolved on the merits in a final judgment. (See Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4^th 888, 896.) However, that only applies to a second action involving the same parties or those in privity (in a legal relationship) with them. (Id. at 897.) Moreover, the issue to be relitigated must be identical to what was resolved in the initial proceedings. (Pacific Lumber Co. v. State water resources Control Board (2006) 37 Cal.4^th 921, 943.) In any action between the creditor and the survivor to collect on the debt, the creditor will not have been a party to the domestic violence action and very likely not in privity with the abuser (though in some cases, where the creditor is a friend or family member, that may not be true).

Thus, while a survivor may be able to use the finding in a domestic violence restraining order, holding that a debt was accrued as the result of domestic violence and in actuality was identity theft, in the creditor’s subsequent action to recover on the debt, the creditor can submit evidence to the court to dispute that finding. The court in the civil action will determine who has the stronger argument, based on a preponderance of the evidence.

It is important to note that the creditor may be well advised not to challenge the survivor unless they have actual evidence supporting their contention that the survivor’s debt is not the result of domestic violence and identity theft. Civil Code Section 1798.93 (e) provides that in that civil case, the court may award, in addition to any other damages, a civil penalty of up to $30,000 if the domestic violence survivor can establish, by clear and convincing evidence, that they provided the creditor with notice of the identity theft, the creditor failed to diligently investigate their notice, and the creditor continued to pursue its claim against them after it was presented with facts that were later held to entitle the survivor to a judgment in the survivor’s favor. This is not an insignificant penalty, and may cause creditors to think twice about challenging a family court’s findings.

The author has agreed to amendments to delay the effective date of the legislation so that the Judicial Council has more time to update forms. As currently in print, the bill is effective on July 1, 2021. Before it is effective, the Judicial Council must create or update forms necessary to effectuate the bill. Given the COVID-19 pandemic, the Judicial Council has requested additional time to create or update the forms. The author has agreed to push the effective date of the bill back to January 1, 2022 to give the Judicial Council the extra time it needs, and the following amendment does just that:

On page 2, line 16, delete “July 1, 2021” and insert:

January 1, 2022

The bill is opposed by the title insurance industry unless amended to make a transfer, encumbrance, or conveyance of real property specifically exempt from the restraining orders under the bill. The California Land Title Association (CLTA), which represents the title insurance industry, opposes the bill unless it is amended to specifically prevent a court, as part of a domestic violence order determining the use, possession, and control of real or personal property of the parties, from invalidating a transfer, encumbrance, or conveyance of real property. CLTA explains its concerns with the bill as now in print:

While we support the underlying purpose of the bill, we strongly oppose the bill’s lack of an express provision clarifying that a court could not invalidate a properly executed and recorded lien in issuing a ruling determining the temporary use, possession, and control of real property. Without such a provision, AB 2517 stands to create a new class of victim in the form of adversely affected innocent third parties that have unknowingly engaged in transactions involving real property subject to liens that were incurred in connection with instances of domestic violence. . . .

If lenders are forced to view every loan secured by real property, such as a second mortgage or home equity line of credit, as one that could be potentially invalidated due to acts outside their knowledge, loans could become more difficult or costly to obtain, thereby negatively impacting all California consumers seeking to utilize those funds for various uses, such as home improvements, paying off higher-interest debts, etc.

It is important to keep in mind that a victim of theft, including identity theft, is protected from creditors, whether or not the theft involves real property. The author is working to address CLTA’s concerns, and, should this bill pass the Committee, Committee staff has agreed to help them resolve their issues, if possible, while still ensuring that victims of domestic violence are protected from financial abuse.

ARGUMENTS IN SUPPORT: The bill’s sponsor, The California Partnership to End Domestic Violence, writes in support:

This bills aims to help survivors who have experienced [financial] abuse by establishing some protections the court can use in determining who is responsible for paying off the incurred debt. Currently Domestic Violence Restraining Orders allows judges to assign specific debts to be paid by the restrained party. By adding space for the judge to also identify which debts were incurred as a result of the domestic violence and through theft of the protected party’s identity, the survivor will be able to use the restraining order as proof for civil debt relief under Civil 1798.93 which requires a person to establish a preponderance of the evidence. The COVID-19 pandemic created or deepened economic hardships for thousands of Californians, including survivors and their families. These economic vulnerabilities put survivors at risk of ending up further in poverty or returning to their abusive partners. Every step we take to improve economic security of survivors will help keep them safe during this already tumultuous time.

Adds the California Low-Income Consumer Coalition:

Financial abuse occurs in the great majority of domestic violence cases and can include stealing money, credit, property, or identity from a partner. It may also include forcing a partner to file fraudulent legal financial documents or overspend on credit cards. Abusive partners can incur debt without a survivor’s consent, or coerce a survivor into incurring the debt by threats of harm. This debt and the credit score impact can have long-term consequences for survivors, and create barriers to educational, housing, and employment opportunities. Since these debts are incurred through the abusive partner stealing the survivor’s identity, it is important for survivors to have the tools to access existing federal and state protections for identity theft and debt defense.

Enacting this legislation will help survivors who have experienced such abuse by establishing protections the court can use in determining who is responsible for the incurred debt. Currently, Domestic Violence Restraining Orders allow the judge to assign specific debts to be paid by the restrained party. By adding a space for the judge to also identify which debts were incurred because of the domestic violence and through theft of the survivor’s identity, the survivor will be able to use the restraining order as documentation for civil debt relief protections under current law, which requires a person to have proof of the abuse. This new regime would also allow survivors to provide the restraining order to creditors to notify them of the identity theft.

REGISTERED SUPPORT / OPPOSITION:

Support

The California Partnership to End Domestic Violence (sponsor)

California Low-Income Consumer Coalition

Casa de Esperanza

Community Resource Center

National Association of Social Workers, California Chapter

Peace Over Violence

Project: PeaceMakers, Inc.

StrengthUnited

Walnut Avenue Family & Women’s Center

Opposition

California Land Title Association (unless amended)

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334