Friday, March 20, 2015

How to Get (or Fight) a Restraining Order in California: Part 3 -- Advanced Edition

Welcome to part 3 of my series covering restraining orders in California.  In this post -- the Advanced Edition -- I want to dig a little deeper into some of the specific questions you might have as you prepare for your big day in court.

If you haven't already, please take a moment to read parts 1 and 2 in the series, available at these links: How to Get (or Fight) a Restraining Order: Part 1; and How to Get (or Fight) a Restraining Order: Part 2.  In my first post, I explained some of the basics about how the entire process works. In the second part of the series, I gave some practical tips and advice to help you prepare for your court hearing.

Today's post is devoted to answering some frequently asked questions.  As always, please feel free to comment if you feel I've missed anything or if you have questions that I didn't answer.

What is an "injunction" and what does it do?

An injunction is a court order to do (or not to do) a specific thing.  A restraining order is one type of injunction that prevents, or "enjoins" the restrained party from coming near the protected party.  It may also enjoin the restrained party from having any sort of contact with the protected person, including telephonic or electronic contact, or even passing a message to the protected person through a 3rd-party intermediary.

What is the purpose of an injunction?  Will the court issue an injunction as a form of punishment?

An injunction may only be issued to prevent some future harm, NOT to correct some wrong that has already occurred.  The court will not order an injunction to punish someone for past bad behavior. Keep in mind, though, that a pattern of bad behavior in the past may be used to show that bad behavior is likely to continue in the future.

What if the "harassment" occurred a long time ago, or only on a single occasion?

Courts have ruled that, in order to justify the issuance of a restraining order, the harassment must be ongoing at the time the injunction is sought -- or else there must be some showing that future harassment is highly likely.  As mentioned above, a pattern of past bad behavior may cause a judge to reasonably suspect that bad behavior is likely to continue in the future.

Courts of appeal have also ruled that a single incident of violence in the past does not justify the issuance of a restraining order, unless the petitioner can prove that violence is likely to happen again.  Many judges don't seem to understand this simple principle.  I see a lot of judges who will automatically grant a restraining order whenever a petitioner can prove that violence has occurred in the past.  This is improper.  A good attorney should be prepared with relevant case law to help the judge understand this basic rule.

If you are seeking a restraining order, it is important to file your petition immediately.  Waiting weeks or months will seriously hurt your case.

As a landlord, may I use a restraining order to evict a tenant?  May my landlord use a restraining order to evict me?

It depends.  There is a process for evicting bad tenants, but a restraining order is not usually the best way to go.  Courts are generally reluctant to order someone out of his or her home.

If your tenant is falling behind on rent, damaging your property, bothering other tenants, or generally failing to abide by the rental agreement, you should consider filing an "unlawful detainer" suit to evict him or her from the property.  Unlawful detainer actions are based on the contract that you both entered into.  At these proceedings, the court is primarily concerned with whether or not the tenant has breached the contract.  Usually, it is easier for a landlord to prove a breach of contract than it is to prove civil harassment.

The court will only use a restraining order to evict a tenant if the landlord can prove that the tenant's mere presence on the property causes substantial emotional distress to the landlord, or that the tenant's presence on the property is intended to harass the landlord.

If the landlord actually lives on or near the property, he might have a more compelling argument that the tenant's mere presence causes him to suffer some emotional distress.  If the landlord lives elsewhere and only comes around to collect rent, then the court is likely to side with the tenant. Other civil remedies might still be available to the landlord in that case, but pursuing a restraining order is likely a waste of time and resources.

If you're dealing a bad tenant, you should file an unlawful detainer action before you petition for a restraining order.  Similarly, if your landlord is attempting to use a restraining order to evict you from your housing, you and your attorney should be prepared to argue that your landlord is abusing the process by filing a restraining order for an improper purpose.

What kinds of evidence can / should I present at my hearing?

You can and should present any evidence which is relevant to the issue that the court is addressing.  Remember, the issue is limited to this: has the petitioner been the victim of civil harassment?  As mentioned in previous posts, the judge does not care about anything else, no matter how important some other issues might be to you.  Do not waste your time and the court's with arguments that you are a nice person and the other party is a jerk (or that you have done nice things for the other party in the past, or that the other party has lied about something irrelevant in the past, or that the other party is an alcoholic, etc.)

If you allege that someone has been sending you harassing emails and text messages,  you should bring copies of those messages.  If you allege that someone has been calling you repeatedly, you should bring your phone records.  Any records that you want to present at the hearing should be in paper form.  These records are going to become "exhibits" and they need to be placed into the court's file.  Do not simply hold up your phone to show the judge your call log. Your phone cannot be filed as evidence.

As mentioned in my previous posts, you may bring witnesses if they actually saw the things that you allege occurred (or if they will provide an alibi to prove that you did not do the things alleged). If you intend to present witnesses, you should have them subpoenaed.  An attorney can help you with the process of issuing subpoenas.

Written "affidavits" and "declarations" from witnesses may be admissible in some restraining order hearings, but live witnesses are preferable. Those documents are technically hearsay, but appellate courts have ruled that hearsay may be admitted in restraining order hearings, subject to some complicated rules and exceptions.

If you allege that you have been the victim of violence, threats or other harassment, the judge will want to know whether or not the police were involved.  If they were, you should bring copies of any incident reports that police prepared.  You may also subpoena any officers who were involved to testify on your behalf.  As mentioned in a previous post, there is a process for issuing a civil subpoena to a law enforcement officer.  There may also be a fee involved to compensate taxpayers for the value of the officer's time.

What kinds of defenses are available to fight against a restraining order?

The burden is entirely on the petitioner to prove "by clear and convincing evidence" that harassment has occurred.  The respondent does not have to prove anything, he only has to show that the petitioner's case is neither "clear" nor "convincing".  Of course, the defense is even stronger if the respondent can prove that harassment did not occur, but it may be difficult to prove a negative.

A qualified attorney should be well-versed in cross-examining a witness to get to the truth of the matter.  Your lawyer should request that all witnesses be excluded from the courtroom when they're not testifying so that they may not tailor their stories to match the testimony of the witnesses before them.

Often, when a respondent has acted badly in the past or done things that he's not proud of, he may be able to prove that he had a lawful purpose for engaging in that conduct.  Speak with a lawyer to determine whether or not your purpose is actually "lawful" and whether or not it constitutes a defense to a restraining order.

Even when it can be shown that the respondent has behaved badly and engaged in a course of conduct that meets the legal definition of "harassment", he may still prevail if he can convincingly demonstrate that the bad conduct is unlikely to occur again in the future.  Restraining orders are not intended to punish a person for bad behavior in the past -- they're intended to prevent some harm that's likely to occur in the future.

If you've been the victim of harassment or you've been served with a restraining order, call us for a free attorney consultation.  We have extensive experience litigating in all Southern California courts on both sides of restraining order cases.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer