Amended IN Senate May 01, 2025

Amended IN Senate April 10, 2025

Amended IN Senate March 26, 2025

CALIFORNIA LEGISLATURE— 2025–2026 REGULAR SESSION

Senate Bill

No. 738

Introduced by Senator Rubio

February 21, 2025

An act to amend Sections 391 and 391.1 of, and to add Section 391.9 to, the Code of Civil Procedure, and to amend Sections ~~6309 and 6320~~ 6309, 6320, and 6340 of the Family Code, relating to domestic violence.

LEGISLATIVE COUNSEL'S DIGEST

SB 738, as amended, Rubio. The Reclaim Act.

Existing law permits a court, on its own motion or the motion of any party, to enter a prefiling order prohibiting a vexatious litigant from filing any new litigation in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Existing law permits a presiding judge or a presiding justice to allow a vexatious litigant’s filing only under specified circumstances and permits the presiding judge to condition the filing upon the furnishing of security. Existing law defines a “vexatious litigant” for these purposes to include, among other things, a person who, after being restrained by a domestic violence restraining order, and while that order is still in place, commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order. Existing law authorizes a person protected by a restraining order issued after a hearing pursuant to the above-described provisions to file a petition, without fee, to have the person who is the subject of that order declared a vexatious litigant if, while the restraining order is still in place, they commence, prosecute, or maintain litigation against the person protected by the restraining order in an action that is determined to be meritless and caused the person protected by the order to be harassed or intimidated.

Existing law establishes the Domestic Violence Prevention Act for the purpose of preventing acts of domestic violence, abuse, and sexual abuse and providing for a separation of the persons involved in the domestic violence for a period sufficient to enable those persons to seek a resolution of the causes of the violence. Existing law authorizes a court to issue a protective order enjoining a party from engaging in specified acts, including threatening or harassing the other party or disturbing the peace of the other party. Existing law provides that disturbing the peace of the other party refers to conduct that includes coercive control, which includes unreasonably engaging in, among other things, isolating the other party from friends, relatives, or other sources of support. Existing law makes an intentional and knowing violation of a protective order punishable as a misdemeanor.

Existing law declares the intent of the Legislature to, among other things, promote the health and safety of domestic violence survivors and their children. Existing law recognizes that litigation abuse is the use of legal or bureaucratic procedures by abusive partners to continue to attack, harass, intimidate, coercively control, or maintain contact with a former partner through the legal system. Existing law limits and controls discovery in family law proceedings to the least intrusive methods, as specified.

Existing law authorizes a court to issue, after notice and a hearing, orders enjoining a party from engaging in specified behavior, including contacting, attacking, or threatening another party, and excluding the party from a family dwelling. Existing law further provides that when determining whether to make those orders, the court must consider whether its failure to make any of those orders may jeopardize the safety of specified parties.

This bill, the Reclaim Act, would remove the requirement that the domestic violence restraining order still be in place for purposes of a person being declared a vexatious litigant, and instead would apply when the restraining order is in effect, has expired, or has been modified or terminated. The bill would, rather than requiring a determination whether the prior litigation was meritless and caused the protected person to be harassed or intimidated, instead require the court to determine whether a prior litigation was determined to be ~~frivolous, abusive, or~~ frivolous or solely intended to abuse, intimidate, or maintain contact with the protected person. The bill would also expand the definition of a vexatious litigant to include a person who following a conviction, including a conviction following a plea of nolo contendere, of a ~~crime, misdemeanor, or infraction~~ crime that involves domestic violence, as defined, commenced, prosecuted, or maintained litigation against the victim that is determined to be ~~frivolous, abusive, or~~ frivolous or solely intended to abuse, intimidate, or maintain contact with the victim. This bill would authorize, in an action filed by the person convicted of the crimes against the victim of those crimes, the victim to file a petition, without fee, to have the person who was convicted of those crimes to be declared a vexatious litigant.

This bill would prohibit a plaintiff in a civil action, who has been deemed to be a vexatious litigant on the basis of the above-described provisions and who is the subject of a restraining order protecting the defendant, from seeking information from the defendant in discovery that is protected by the restraining order without prior authorization from the court. The bill would allow the court to grant a motion for disclosure of information protected by the restraining order only upon a showing of good cause by the plaintiff, as prescribed. The bill would authorize a defendant who receives a discovery request in violation of these provisions to disregard the request without filing a motion for a protective order and would prohibit the court from issuing sanctions against a defendant who disregarded such a request in good faith.

This bill would additionally authorize a court to issue an ex parte order enjoining a party from ~~engaging in litigation abuse, as defined.~~ commencing litigation that is frivolous or solely intended to abuse, intimidate, or maintain contact with the other party. By expanding the scope of enjoined activities under a protective order, the violation of which is a crime, this bill would impose a state-mandated local program.

This bill would authorize, if, on or after the date a protective order is issued, the respondent and the petitioner are engaged in a legal proceeding initiated by the respondent, the petitioner to request a court order preventing the respondent from seeking discovery, as specified. The bill would authorize the court to consider the scope of the protective order and whether the information sought, or the discovery method selected, appears intended to circumvent the protective order.

This bill would also make a legislative finding recognizing that litigation abuse may emotionally or financially harm domestic violence survivors with unnecessary, irrelevant, or intrusive discovery.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES

The people of the State of California do enact as follows:

SECTION 1.

This act shall be known, and may be cited, as the Reclaim Act.

SEC. 2.

(a) The Legislature finds and declares both of the following:

(1) Domestic violence is an urgent public safety and public health crisis. In California, more than one in three women and one in seven men experience intimate partner physical violence, intimate partner sexual violence, or intimate partner stalking in their lifetimes. Sexual and gender minorities, including queer, gender nonbinary, intersex, and transgender persons, experience domestic violence at rates as high or higher than cisgender and heterosexual persons. Domestic violence accounts for more than 15 percent of all violent crimes in California and more than 10 percent of all California homicides.

(2) Domestic violence survivors often face ongoing abuse in the form of litigation abuse. Litigation abuse is the use of legal or bureaucratic procedures by an abusive person to continue to attack, harass, intimidate, coercively control, or maintain contact with their former partner through the litigation system by exerting power over them, forcing them to have contact, financially burdening them with excessive discovery and litigation, degrading and insulting them in legal papers, unduly delaying the court process and final resolution of important issues, or dissuading them from pursuing legal protection. Studies show that litigation abuse causes severe consequences for a survivor, including economic hardship, psychological harm, and foregoing legal relief in part or in whole. Research also shows that judicial officers and court evaluators often misunderstand or overlook litigation abuse and its effects on survivors.

(b) It is the intent of the Legislature to accomplish all of the following:

(1) Promote the health and safety of domestic violence survivors and their children.

(2) Prevent abusive litigation tactics that interfere with the Legislature’s intent to protect domestic violence victims.

(3) Empower domestic violence survivors and allow them to reclaim and maintain their freedom from their abusers who engage in domestic abuse.

SEC. 3.

Section 391 of the Code of Civil Procedure is amended to read:

391.

For purposes of this title, the following terms have the following meanings:

(a) “Litigation” means a civil action or proceeding, commenced, maintained or pending in a state or federal court.

(b) “Vexatious litigant” means a person who does any of the following:

(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

(5) After being restrained pursuant to a restraining order issued after a hearing pursuant to Chapter 1 (commencing with Section 6300) of Part 4 of Division 10 of the Family Code, they commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order in this or any other court or jurisdiction that are determined to be ~~frivolous, abusive,~~ frivolous or solely intended to abuse, intimidate, or maintain contact with the protected person. This paragraph applies when the restraining order after hearing is in effect, has expired, or has been modified or terminated.

(6) After being convicted, including, but not limited to, a conviction following a plea of nolo contendere, of a ~~crime, misdemeanor, or infraction~~ crime that involves domestic violence, as defined in Section 6211 of the Family Code, they commenced, prosecuted, or maintained one or more litigations against the victim of the crime in this or any other court or jurisdiction that are determined to be ~~frivolous, abusive,~~ frivolous or solely intended to abuse, intimidate, or maintain contact with the victim of the crime.

(c) “Security” means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.

(d) “Plaintiff” means the person who commences, ~~institutes~~ institutes, or maintains a litigation or causes it to be commenced, ~~instituted~~ instituted, or maintained, including an attorney at law acting in propria persona.

(e) “Defendant” means a person (including corporation, association, ~~partnership~~ partnership, and firm or governmental entity) against whom a litigation is brought or maintained or sought to be brought or maintained.

SEC. 4.

Section 391.1 of the Code of Civil Procedure is amended to read:

391.1.

(a) In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant.

(b) (1) A motion pursuant to subdivision (a) on the grounds that the plaintiff is a vexatious litigant, pursuant to paragraph (5) of subdivision (b) of Section 391, may be brought only by a person protected by the restraining order. A person filing a motion as described in this paragraph is not required to pay a filing fee.

(2) A motion pursuant to subdivision (a) on the grounds that the plaintiff is a vexatious litigant, pursuant to paragraph (6) of subdivision (b) of Section 391, may be brought only by a victim in the criminal proceedings in which the plaintiff was convicted. A person filing a motion as described in this paragraph is not required to pay a filing fee.

SEC. 5.

Section 391.9 is added to the Code of Civil Procedure, to read:

391.9.

(a) If a plaintiff in a civil action has been deemed a vexatious litigant pursuant to paragraph (5) or (6) of subdivision (b) of Section 391 and the plaintiff is the subject of a restraining order protecting the defendant, the plaintiff shall not seek information from the defendant in a discovery that is protected by the restraining order without prior authorization from the court.

(b) (1) The court may grant a motion for the disclosure of information protected by the restraining order only upon a showing of good cause for the discovery by the plaintiff.

(2) In determining whether good cause exists under paragraph (1), the court shall consider all of the following:

(A) The importance and relevance of, and need for, the information sought to be obtained.

(B) The likelihood that the information may be acquired by another permitted discovery method, or may be acquired by other methods.

(C) Any other factor that may affect the reasonableness and fairness of the request for discovery.

(c) A defendant who receives a discovery request in violation of subdivision (a) may disregard the request without filing a motion for a protective order. The court shall not issue sanctions against a defendant who in good faith disregarded the request on the belief that the information was protected by their restraining order and the plaintiff had not obtained the motion, even if the court subsequently rules that the request does not seek information subject to the protective order.

SEC. 6.

Section 6309 of the Family Code is amended to read:

6309.

(a) (1) The Legislature finds and declares all of the following:

(A) Domestic violence is an urgent public safety and public health crisis. More than one in three California women and one in seven men experience intimate partner physical violence, intimate partner sexual violence, or intimate partner stalking in their lifetimes. Sexual and gender minorities, including queer, gender nonbinary, intersex, and transgender persons, experience domestic violence at rates as high or higher than cisgender and heterosexual persons. Domestic violence accounts for more than 15 percent of all violent crimes in California and more than 10 percent of all California homicides.

(B) Domestic violence survivors are most at risk when attempting to leave an abusive relationship. Without effective intervention in domestic abuse, the violence often increases in frequency and severity over time. Research has established that the civil domestic violence restraining order is the most effective legal remedy for intervening in and preventing future abuse.

(C) Domestic violence survivors who enter the family or civil court systems seeking protection often face ongoing abuse in the form of litigation abuse. Litigation abuse is the use of legal or bureaucratic procedures by abusive partners to continue to attack, harass, intimidate, coercively control, or maintain contact with their former partners through the litigation system by exerting power over them, forcing them to have contact, financially burdening them with excessive discovery and litigation, emotionally or financially harming them with unnecessary, irrelevant, or intrusive discovery, degrading and insulting them in legal papers, unduly delaying the court process and final resolution of important issues, or dissuading them from pursuing legal protection. Studies show that litigation abuse causes severe consequences for survivors, including economic hardship and psychological harm, and foregoing legal relief in part or in whole. Research also shows that judicial officers and court evaluators often misunderstand or overlook litigation abuse and its effects on survivors.

(2) It is the intent of the Legislature to accomplish the following:

(A) To promote the health and safety of domestic violence survivors and their children.

(B) To ensure that domestic violence survivors can seek and receive, without delay, the protection offered by the domestic violence restraining orders, which are remedial injunctive orders intended to offer expedited separation and protection from abuse.

(C) To provide for separation and to prevent future acts of domestic violence by streamlining any domestic violence restraining order discovery to expedite the adjudication of requests for restraining orders and prevent abusive litigation tactics that interfere with legislative intent to protect domestic violence victims.

(b) Consistent with the findings and declarations and statements of legislative intent in subdivision (a), discovery pursuant to the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure), is not permitted pursuant to this part except as set forth in this section.

(c) (1) A court may grant a request for discovery only upon a showing of good cause for the discovery by the party making the request.

(2) A party may make an oral or written request for discovery to the court at an evidentiary hearing pursuant to this part.

(3) A person shall not be required to make a written objection or response to a request for discovery but may express any objection or response orally or in writing or at the hearing.

(d) In determining whether to permit discovery in a proceeding pursuant to this part, the court shall consider all of the following:

(1) The importance and relevance of, and need for, the information sought to be obtained.

(2) The likelihood that the information may be acquired by another permitted discovery method, or may be acquired by other methods including pleadings or examination at the hearing.

(3) The delay in completion of the hearing, which is entitled to calendar preference pursuant to Section 244, if the discovery is permitted.

(4) The potential, if any, that the discovery may induce trauma in any person involved in the proceeding.

(5) Whether one or more persons are subject to any restraining or protective orders.

(6) Any other factor that may affect the prompt and fair resolution of the proceeding.

(e) If a court finds good cause and grants a request for discovery pursuant to subdivision (c), the court may do either of the following:

(1) (A) Continue the commencement of hearing for a reasonable period to permit one or more methods of discovery.

(B) If the court continues the hearing to allow for discovery pursuant to subparagraph (A), the court shall extend, and may modify, any restraining order in place.

(2) Commence the hearing to receive evidence and then continue the hearing to permit one or more methods of discovery.

(f) The court shall limit and control any permitted discovery to the least intrusive methods as authorized pursuant to the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) and the minimum number of items reasonably necessary to secure the requested information. The court shall specify the time for response to any permitted discovery after considering the items in subdivision (d).

(g) Nothing in this section is intended to take away rights afforded in the Domestic Violence Prevention Act. Nothing in this section is intended to infringe on the ability for abuse survivors to receive their police reports and evidence pursuant to Section 6228 or on parties’ ability to discover their own business records without obtaining court permission, including medical records, phone records, or recordings of calls to 911, to provide corroborating proof.

SEC. 7.

Section 6320 of the Family Code is amended to read:

6320.

(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, ~~engaging in litigation abuse, as that term is described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 6309 against,~~ commencing litigation that is frivolous or solely intended to abuse, intimidate, or maintain contact with the other party, 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.

(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.

(c) As used in this subdivision (a), “disturbing the peace of the other party” refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party. This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means including, but not limited to, telephone, online accounts, text messages, internet-connected devices, or other electronic technologies. This conduct includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty. Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following:

(1) Isolating the other party from friends, relatives, or other sources of support.

(2) Depriving the other party of basic necessities.

(3) Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.

(4) Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.

(5) Engaging in reproductive coercion, which consists of control over the reproductive autonomy of another through force, threat of force, or intimidation, and may include, but is not limited to, unreasonably pressuring the other party to become pregnant, deliberately interfering with contraception use or access to reproductive health information, or using coercive tactics to control, or attempt to control, pregnancy outcomes.

(d) This section does not limit any remedies available under this act or any other provision of law.

SEC. 8.

Section 6340 of the Family Code is amended to read:

6340.

(a) (1) The court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing. When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought. If the court makes any order for custody, visitation, or support, that order shall survive the termination of any protective order. The Judicial Council shall provide notice of this provision on any Judicial Council forms related to this subdivision.

(2) (A) If at the time of a hearing with respect to an order issued pursuant to this part based on an ex parte temporary restraining order, the court determines that, after diligent effort, the petitioner has been unable to accomplish personal service, and that there is reason to believe that the restrained party is evading service, the court may permit an alternative method of service designed to give reasonable notice of the action to the respondent. Alternative methods of service include, but are not limited to, the following:

(i) Service by publication pursuant to the standards set forth in Section 415.50 of the Code of Civil Procedure.

(ii) Service by first-class mail sent to the respondent at the most current address for the respondent that is available to the court or delivering a copy of the pleadings and orders at the respondent’s home or place of employment, pursuant to the standards set forth in Sections 415.20 to 415.40, inclusive, of the Code of Civil Procedure.

(B) If the court permits an alternative method of service under this paragraph, the court shall grant a continuance to allow for the alternative service pursuant to Section 245.

(b) The court shall, upon denying a petition under this part, provide a brief statement of the reasons for the decision in writing or on the record. A decision stating “denied” is insufficient.

(c) The court may issue an order described in Section 6321 excluding a person from a dwelling if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party.

(d) If, on or after the date the protective order is issued pursuant to subdivision (a), the respondent and the petitioner are engaged in a legal proceeding initiated by the respondent, the petitioner may request an order from the court to prevent the respondent from seeking discovery in violation of subdivision (a) of Section 2019.030 of the Code of Civil Procedure. The court may consider, as part of its determination, the scope of the protective order and whether the information sought, or the selected method of discovery, appears intended to circumvent the protective order.

SEC. 8.SEC. 9.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.