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Name: In re E.F.
Case #: S260839
Court: CA Supreme Court
District CalSup
Opinion Date: 04/19/2021

Opinion By: Justice Liu (unanimous decision)
Juvenile courts must follow the notice requirements under Code of Civil Procedure section 527 before issuing a temporary restraining order (TRO) pursuant to Welfare and Institutions Code section 213.5. At school, E.F. offered L.S. a microwaved cup of noodles. L.S. smelled bleach and threw the cup out. The district attorney filed a juvenile delinquency petition alleging that E.F. had committed poisoning. The juvenile court issued a TRO enjoining E.F. from having any contact with L.S. The prosecutor acknowledged that no notice was provided before the hearing. E.F. appealed. The Court of Appeal affirmed, holding that a juvenile court may issue a TRO without notice and without following the requirements outlined in section 527. The California Supreme Court granted review to resolve a split in authority. Held: TRO invalid. Section 213.5, subdivision (b) permits a juvenile court to issue ex parte restraining orders “upon application in the manner provided by Section 527 of the Code of Civil Procedure.” Section 527 requires notice, but permits a TRO to issue without notice upon a trial court’s finding that (1) great or irreparable injury will result before the matter can be heard on notice and (2) the applicant certified that he or she tried, or should not be required, to inform the opposing party when and where the application would be made. After analyzing the two statutes, the court determined that all TRO applications under section 213.5 must satisfy the procedural requirements of section 527. The court disagreed with the district attorney’s argument 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. Section 213.5, subdivision (c) sets forth the procedure to be followed in the event that a court grants a TRO without notice and says nothing about what procedures must be followed before a TRO may be granted without notice.

While the specific amount of time necessary to satisfy the notice requirement is not delineated in section 213.5, more than courtroom notice is required. The district attorney also argued that even if notice is required, courtroom notice (notice first provided at the hearing itself) suffices to satisfy the relevant statutes. The California Supreme Court agreed with Courts of Appeal that have rejected this position. “[U]nder the statutory scheme, courtroom notice is not enough to avoid the affidavit requirement specified by Code of Civil Procedure section 527, subdivision (c).” Section 527, subdivision (c) makes clear that advance notice or a showing of justification for lack of such notice is required for issuance of a TRO. Even a TRO with a limited duration may have serious consequences for the juvenile who is restrained, which counsels against an inference that the Legislature intended to eliminate the standard notice requirement that affords the juvenile an adequate opportunity to contest an application for a TRO. Here, the district attorney conceded that no notice was provided before the hearing, and no attempt was made to show “great or irreparable injury” (Code Civ. Proc., § 527, subd. (c)(1)) or otherwise to comply with section 527, subdivision (c). The juvenile court’s issuance of the TRO thus exceeded its authority under section 213.5.