People v. E.F. (In re E.F.)

• Decision Date: 19 April 2021
• Docket Number: S260839
• Citation: People v. E.F. (In re E.F.), 11 Cal.5th 320, 484 P.3d 565, 277 Cal.Rptr.3d 324 (Cal. 2021)
• Court: California Supreme Court
• Parties: IN RE E.F., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. E.F., Defendant and Appellant.

11 Cal.5th 320

484 P.3d 565

277 Cal.Rptr.3d 324

IN RE E.F., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.E.F., Defendant and Appellant.

S260839

Supreme Court of California.

April 19, 2021

Courtney M. Selan, Los Angeles, 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.

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 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 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, 258 Cal.Rptr.3d 491.) The Court of Appeal disagreed with In re L.W. (2020) 44 Cal.App.5th 44, 49–51, 257 Cal.Rptr.3d 315, 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 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, 122 Cal.Rptr. 877, 537 P.2d 1237.)

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, 249 Cal.Rptr.3d 281, 444 P.3d 85.)

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 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 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...