Wednesday, June 26, 2013

How Do I Get (or Fight) a Restraining Order in California?

Note: There are several different types of restraining orders in California that may be issued in various circumstances.  The process varies slightly depending on which specific type of order is involved.  For example, Domestic Violence Restraining Orders are typically heard in the family court, but restraining orders based on civil harassment or workplace violence are usually heard in civil court.  This article focuses on Civil Harassment Restraining Orders, but most of the general points also apply in cases involving domestic violence or workplace harassment.  

Starting January 1, 2016, California courts will begin issuing "Gun Violence Restraining Orders".  Follow the link for more information.  

Individuals who have suffered harassment or domestic violence in California may appear before a judge to ask for the protection of a restraining order (hereinafter, a "RO").  A RO is a civil injunction which orders the restrained party not to commit certain acts.  The person seeking the order is called "the petitioner". The person against whom the order is sought is called "the respondent".

The courts and legislature in California have intentionally made the RO application process as simple as possible. The idea was to provide a relatively straightforward procedure that would not require expensive attorneys or deter applicants who might be intimidated by a complicated legal system.  As with most things in California, though, the process actually involves a lot more red tape than anyone intended or foresaw.  Below, I'll attempt to provide a brief outline of the process for obtaining or fighting a restraining order in the Golden State.  

Under section 527.6 of the California Code of Civil Procedure, a judge may prohibit a person from "harassing, intimidating, molesting, attacking, striking, threatening, sexually assaulting, battering, abusing, telephoning... destroying personal property, contacting...coming within a specified distance of, or disturbing the peace of [another person]".  Of course, most of the things listed here are already crimes.  If your ex-boyfriend slashes your tires, for example, he is guilty of vandalism. If you had a restraining order in effect, though, he would additionally be guilty of violating that order under PC 273.6 and / or PC 166(a)(4).  Depending on the circumstances, violating a restraining order can land your ex in state prison for up to three years.  

To request a restraining order, the petitioner must first complete a series of forms, called a "Petition".  Once the petition is fully completed and properly filed with the court, a judge will determine, "by a preponderance of the evidence", whether or not the petitioner has demonstrated reasonable proof of harassment.  The judge will render decision on the TRO on the same day that the request is filed.  If granted, the TRO may remain in effect for up to 21 days.  

Within 21 days of the petition's filing, the court will schedule a hearing on the injunction.  Between the time of the filing and the date of the hearing, the respondent may file a "response", in which he explains, excuses, justifies or denies the allegations contained in the petition.  I won't go into boring details here, but there is another series of steps that must be taken to properly serve the respondent with a notice of the hearing and to provide the court with proof of that service.  

At the hearing on the injunction, a judge must determine, "by clear and convincing evidence", whether or not unlawful harassment has occurred.  The "clear and convincing evidence" required for the issuance of the injunction is a much higher standard than the "preponderance of evidence" required for the issuance of a TRO.  If a judge agrees that the respondent's behavior has constituted "harassment", then the injunction shall be granted.  It may remain in effect for up to three years.

Note: Here's one area where domestic violence restraining orders are a little different from restraining orders based on civil harassment -- in domestic violence cases, the petitioner must prove his or her case by "reasonable proof", which is a lower bar than "by clear and convincing evidence".  Also, a domestic violence restraining order may last for up to 5 years.  

Now the big question on everyone's mind:  What kind of conduct constitutes the basis for a restraining order? Obviously, the court has neither the resources nor the inclination to involve itself in every dispute that arises between people in society.  The court cannot and will not order an asshole to be polite. There are just too many assholes and not enough courtrooms (maybe that's what I'll call my book some day -- "Too Many Assholes, Not Enough Courtrooms: The John Bussman Story").  The law defines "harassment" as: "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.  The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner".  

Of course, many of these terms are subjective and judges often have different opinions regarding their definitions.  Parties (and judges) often disagree over whether or not a particular course of conduct serves a "legitimate purpose".  Similarly, the definition of "substantial emotional distress" varies wildly from one courtroom to another.  This ambiguous language can make restraining order hearings a little unpredictable.

Generally, the court is looking for a pattern of behavior that involves violence or threats of violence, and that would cause a reasonable person to fear for his or her safety.  At these hearings the judge is asking himself, "Why should the taxpayers be involved in your dispute?  I understand that your neighbor is a jerk, but why is that society's problem?".  When ROs are denied, it is usually because the petitioner has failed make some showing of harassment, has failed to prove the alleged harassment by clear and convincing evidence, or has failed to demonstrate that harassment is likely to occur in the future.  ROs may also be denied where the petitioner has failed to provide proof to the court that the respondent has been properly served with a notice of the hearing.

If granted, a restraining order usually orders a respondent not to do something that he didn't want to do anyway.  Example: your neighbor files a restraining order because he claims he's afraid of you.  You maintain that you haven't committed any harassment, but you decide that you're not going to waste your time and money to appear at the court hearing.  This RO, even if granted, really won't effect your life either way, right?  Wrong.  A restraining order is a public record, meaning that prospective employers will see it.  Being the subject of a restraining order will negatively impact your job prospects and could disqualify you from holding certain licenses.  Also, you may not possess firearms while you are the subject of a restraining order.  If an order is granted against you, you will be ordered to sell your guns to a licensed dealer or surrender them at the local police station. Further, you could be subject to arrest for violating any provisions of the order.  That's a headache you don't want or need.  

If you're accused of violating an existing restraining order, there may be defenses that you aren't even aware of.  Often, defendants accused of restraining order violations simply plead guilty without speaking to an attorney because they assume that the case is fairly open-and-shut.  That's not always true. Defenses to restraining order violations usually turn on technical defects with the order or with some aspect of the process. These are issues that only a trained criminal defense attorney can spot and use to your advantage.  

If you've been the victim of harassment, you've been served with a notice that someone is seeking a restraining order against you, or if you're accused of violating an existing restraining order, call my office at (714) 449-3335 for a free consultation.  Ask for John.  We have experience on both sides of restraining order cases.  Showing up to court prepared, accompanied by an experienced attorney can increase your chances of success.

For more information about restraining orders in California, including some tips and advice to help you prepare for your day in court, see Part 2 of this series, available here.  When you're done with that, check out Part 3, which includes some answers to frequently asked questions.

Orange County Restraining Order Attorney