How NOT to Fight a Restraining Order in California

Earlier this week, I wrote a post about some specific strategies that I've successfully used to defend against restraining orders in California. I've previously published several posts explaining the legal procedures that are involved in restraining order hearings. If you haven't already done so, start by studying my old posts.  They'll give you a good understanding of what to expect, how to prepare and what to say when you're standing in front of the judge.

Today, I want to discuss a few bad strategies -- what NOT to do at your big court date.  These tips are all based on restraining order proceedings that I've personally observed in my career.  You can guess how they turned out.

If you make these arguments in front of a judge, you will sabotage your own case.  You'll probably get laughed at.  You'll definitely lose, and then you'll wish you had taken my advice.  Don't be a loser.  Read this post carefully, then call my office for a free consultation.

Bad Advice #1:  Waste the Judge's Time With Irrelevant Arguments

Remember, the #1 rule at restraining order hearings is to STAY ON POINT.  If you're responding to a restraining order petition (someone has filed a restraining order against you), the ONLY ISSUE that the judge cares about is whether or not you have engaged in some conduct that could form the basis for the issuance of a restraining order.  That conduct may include actual violence, threats of violence, or some course of conduct that serves no lawful purpose except to annoy or harass the petitioner.  You must focus 100% of your energy and attention to proving that the alleged harassment did not occur.

The judge does not care if you're a good person, or if the petitioner is a bad person, or if you've done nice things for the petitioner, or if the petitioner has lied about something unrelated in the past, or if the petitioner is promiscuous, or if the petitioner stole money from you once or if the petitioner is an alcoholic.  The judge is not interested in determining who was responsible for your breakup.  All of that stuff might be important to you, but it is completely irrelevant to the one question on the judge's mind: have you harassed the petitioner?

If you're talking about anything in the world other than justifying, explaining or denying the accusations against you, you're wasting the judge's time with irrelevant arguments.  Knock it off.

Bad Advice #2:  Ignore the Accusations That the Petitioner is Making Against You.  Instead, Just Attack the Petitioner's Character

This goes back to my first point.  If you're discussing anything other than the accusations against you, you are off topic.

When you're accused of harassing the petitioner, it is not helpful to argue that the petitioner is a terrible person.  Those arguments are irrelevant because you're still not allowed to harass terrible people.

If you can prove that the petitioner is lying about something on the petition, then focus your attention on proving that the specific accusations against you are untrue.  The judge will not allow you to introduce evidence that the petitioner has lied about something unrelated on another occasion, though.  A 5-minute hearing would take 2 weeks if the judge allowed both sides to present evidence of every dishonest act that their opponent has ever committed since the beginning of time.

Here's an example that I see very often in restraining order hearings:

Petitioner:  Your honor, my ex-boyfriend was abusive toward me during our relationship.  Since we broke up, he has been showing up at my house and my workplace unannounced.  He has also been sending threatening messages to me and to my kids.

Respondent:  Your honor, the petitioner has 2 DUI convictions.  She stole my checkbook one time and she cheated on me during the relationship.  She cheated on her last boyfriend, too.  I helped pay for her kid's private school and I made her car payments for 3 months.  She never even said "thank you".

Judge:  I've heard testimony from the petitioner that the respondent committed acts of violence, threats, and harassment against her.  Having had an opportunity to deny or explain the allegations, the respondent has failed to do so.  Since the respondent has not denied the accusations, I will find that they are true by a preponderance of the evidence.  The restraining order is granted and shall remain in the effect for a period of 5 years.  Next!

Bad Advice #3:  Continue Harassing the Petitioner While the Case is Pending

I understand that you're angry and frustrated about the restraining order that your ex has filed against you.  Those feelings are natural.  For many people, the first thought is retribution.  You want to punish your lying, ungrateful ex-girlfriend for making all these ridiculous accusations.

You must resist the urge to retaliate.  Your revenge will be beating the order and walking out of court with a smile on your face.

Do not file frivolous legal claims against the petitioner before your court date.  Do not post angry or defamatory messages online.  Do not contact the petitioner's friends and family.  If the petitioner is trying to provoke you, don't take the bait.  Basically, don't do anything to make yourself look crazy before your hearing.

If the judge finds that you made some mistakes in the past, but you've moved on and harassment is unlikely to occur in the future, then you have a good chance at beating the restraining order.  If, on the other hand, you've demonstrated that you have some serious emotional issues, you have a tendency to engage in compulsive behavior and you're consumed by anger at your ex, then you will lose.

Keep it cool.  Be the mature one and show the judge that this restraining order against you is unnecessary.

Bad Advice #4:  Show Up Unprepared 

If you have witnesses who will corroborate your alibi, bring them with you.  If you have documents or photos that you want the judge to consider, print them out and organize them before you come to court. All of your proposed exhibits should be in paper form so that they can be stored and cataloged in the court's files.

Study my previous posts about restraining orders.  Take some quality time to understand the law, the rules of court and the issues that will be presented.  Make some notes to organize your thoughts. Restraining order hearings go quickly and you will be nervous when you're on the spot.  If your thoughts are scattered, the judge will have a hard time following your good arguments.

Try to predict the arguments that your opponent will present and prepare for those issues in advance. You cannot simply gloss over the bad facts; you must confront them with valid, rational, legal defenses.

Look respectable.  If you have a suit, wear it.  If you don't own a suit, at least put on a tie.  If you don't own a tie, at least wear long pants, closed-toe shoes and a collared shirt.  If you don't own those things, then you probably have bigger problems.  Stop reading now and go buy some decent clothes.

Bad Advice #5:  Take Legal Tips From Your Non-Lawyer Friends and Family

It doesn't matter if your mom thinks you have a great legal argument.  Your mom isn't going to be your judge, so she's not the one we need to convince.

It's your friends' job to be supportive and to tell you what you want to hear.  It's your lawyer's job to give it to you straight.  Your lawyer understands the law and the rules of evidence.  Your friends don't.

It drives me nuts when a client calls me and says, "I know you told me to stay away from my ex-girlfriend's apartment, but my mom thought it would a good idea for me to go try to talk to her one last time."  I also get a lot of this one: "I know you said that it was irrelevant, but all my friends think the judge really needs to know that my ex-girlfriend is crazy."  Stop listening to your friends.  They're trying to help, but they're not helping.

Here's some good advice:  if you've been served with a restraining order in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  We handle all types of restraining orders in all Southern California courts.

Thanks for reading.

California Restraining Order Lawyer

What Kinds of Knives are Legal to Carry in California?

Everybody knows that California has some of the most complicated, restrictive gun laws in the country. Our knife laws are slightly less complicated, but still pretty asinine.  I'm always amazed at how many police officers, prosecutors and judges don't understand these.  By the time you finish reading this, you'll be an expert.

Here's a quick overview of the rules regarding knives in California.

Folding vs. Fixed Blade

California law distinguishes between fixed-blade knives and folding knives. If the knife folds, it may generally be carried concealed, as long as the blade is not extended and locked into place while concealed.  If you can fold it, you can hold it.

If a blade is fixed, the knife is considered a "dirk or dagger". In fact, any non-folding weapon that is capable of inflicting injury by stabbing is considered a "dirk or dagger", even if the object itself is not technically a "knife" (a hay hook, a sharpened toothbrush, etc.).

Dirks / daggers are legal to own, possess and carry, but they may not be concealed upon your person.  A knife is not considered "concealed" if it is worn openly in a sheath suspended from a belt.  A knife is also not considered "concealed" if it is carried within the passenger area of a car.  It is perfectly legal to keep a knife hidden in your car in California, as long as it's not "on your person".

In short: you may carry a folding knife in your pocket as long as the blade is closed.  If you want to carry a fixed-blade knife or any other stabbing weapon on your person, it must be visible and worn in a sheath attached to your belt.

Size Limits on Knives

There is no statewide size restriction on knives under California law, but some cities may have more restrictive local ordinances.  The City of Los Angeles, for instance, prohibits any person from carrying a knife in plain view.  The law includes any knife with a blade of three or more inches in length, any switchblade, and any other sharp stabbing tool affixed to a handle, regardless of length.  The Los Angeles law does not prohibit the concealed possession of folding knives in public, only their display in plain view. The precise definition of "in plain view" is probably up for debate.

Check your local municipal code to determine whether or not your town imposes restrictions on knives that are more stringent than the statewide law.

Prohibited Knives

California prohibits the possession of any weapon that is disguised or not immediately recognizable as a weapon.  This includes knives that are hidden inside hairbrushes, lipstick tubes, writing pens, air gauges, belt buckles, canes, etc.

Californians may own switchblade knives in their homes, but they may not carry switchblades in public or in the passenger area of any car.  They also may not transfer them to any other person.  The same rule applies for gravity knives and butterfly knives, AKA "balisongs", AKA "batangas".

What Counts as a "Switchblade"?

Until a few years ago, there was a real debate among criminal defense attorneys, prosecutors and judges over what actually constituted a "switchblade" knife. The way the law was previously written, it seemed to prohibit public possession of common "assisted openers". Assisted openers are pocket knives with spring-loaded blades that pop fully open once the user starts the process and overcomes some initial resistance. There is no button or release lever, just a thumb stud on the front or on the side of the blade. Assisted openers are a hugely popular "everyday carry" option for many people because of their ease and convenience, especially when working with one hand (on a ladder, for instance).

To clarify all the confusion regarding what did and didn't qualify as a "switchblade" in California, the legislature revamped section 17235 of the Penal Code by adding one sentence to the law. The addition, in italics, was intended to clarify that assisted openers ARE legal to carry in the State of California. Today, that code section reads as follows:

"A 'switchblade knife' means a knife having the appearance of a pocketknife and includes a
spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever. 'Switchblade knife' does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position."

What Counts as a "Butterfly Knife"?

There's a lot of argument about what technically constitutes a "butterfly" knife (or "gravity knife", balisong, etc.).  The legal definition includes any knife with a blade over 2 inches that is capable of being released by a flick of the wrist or by the weight of the blade.  If your folding knife snaps open with a flick of the wrist, or if the blade falls open under it's own weight, then it is illegal to carry in public.


Many law-abiding people are carrying pocket knifes that can be flicked open if the user's wrist is strong and fast enough.  Old pocket knives get loose and fall open.  An aggressive police officer might argue that these are illegal knives.

If you or a loved one have questions regarding knives or other weapons in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience in defending against all types of criminal and weapons-related charges. 

Thanks for reading.

Orange County Weapons Lawyer

Successful Strategies to Defeat a Restraining Order in California

If you've recently been served with a restraining order in California, your head is probably spinning. I've previously written on this blog about the process of seeking or fighting a restraining order. Those posts are available here, here and here.  If you haven't read those already, take a moment to educate yourself on the nuts & bolts of the restraining order process.  Those posts include some helpful tips that you can use to prepare for your big day in court.  If you take the time to wrap your head around that information, then you will have a huge advantage when you stand in front of the judge.

Today, I want to specifically discuss a few different strategies that I have successfully used to defend against restraining orders.  I can't tell you which of these options is best for you and your case.  Of course, every case is unique.  The most advisable strategy will necessarily depend on the facts and circumstances of your situation.

The smartest place to start is with a qualified, local attorney.  He or she can evaluate your case from a neutral, detached perspective to help determine the most advisable course of action.  An experienced professional should understand the rules of evidence and the legal procedures that will be involved in your case. As you're preparing for your court hearing, be aware that your emotions will cloud your judgement. If you're angry, frustrated, embarrassed and confused, you will have a hard time weighing your own case fairly and objectively -- the way that the judge will see it.  Your lawyer can sort through the unique facts of your situation to formulate a winning strategy.

Factual Innocence

The best legal defense in any restraining order case is "factual innocence" -- you really didn't do whatever you're accused of doing. Proving factual innocence should always be the priority of your defense team. Of course, proving a negative can be difficult or impossible.

A common way to prove factual innocence is to provide an alibi -- proof that you were somewhere else at the time that the abuse or harassment occurred. An alibi can be proven with credit card statements, witnesses, plane tickets, phone records, etc. Bring those things to court and make sure that they're in some form that can be organized and stored in the judge's files. If you have text messages, photos or other documents on your phone, print them out before appearing.

Justification

A "justification" is a legal defense in which the respondent admits that he committed the act for which he is accused, but he is able to demonstrate that his conduct was "rightful" under the circumstances. The respondent must convincingly show that, due to circumstances beyond his control, he actually did a good thing, or that he prevented some greater harm by engaging in conduct that might otherwise be illegal or that might form the grounds for the issuance of a restraining order.

The classic example of a "justification" is self-defense. Petitioner alleges that Respondent punched him in the face and broke his front teeth. Normally, punching and injuring a man would be grounds for the issuance of a restraining order. Respondent admits that he punched Petitioner, but he is able to prove that Petitioner attacked him. Respondent is further able to prove that he did nothing to provoke the attack, that he had no other options to defend himself, and that he only used the degree of force that was necessary to repel Petitioner's assault. Here, Respondent's act of punching Petitioner was "rightful" under the circumstances. The restraining order should be denied.

Excuse

An "excuse" is a legal defense that negates the "wrongness" of some conduct, but stops short of actually "justifying" that conduct. When an act is excused, we don't say that the accused individual did a good thing, only that the accused does not deserve to be punished for what he did.

An example of a legal excuse might be sleepwalking. Just like the above example, let's say that Petitioner accuses Respondent of punching him in the face and breaking his front teeth. Respondent admits that he punched Petitioner, but he maintains that he was sleepwalking and that the act was involuntary. Respondent can prove that he has a documented history of sleepwalking and other facts support his defense. Since the act of punching Petitioner was unknowing and involuntary, the restraining order should be denied.

Sleepwalking is obviously a rare and risky defense to attempt, but I used it to demonstrate one example of a legal "excuse" in practice. Other legal excuses include:

• Adequate provocation: "Yeah, I punched him, but he was trying to piss me off and he succeeded". This is the legal equivalent of arguing that "he was asking for it, therefore he constructively consented to my punch". It doesn't make the violent act OK, but it removes some of the blame that we might normally assign to the respondent. 

• Involuntary intoxication: "I accepted a drink from a stranger at a bar. I believed that the drink contained only cranberry juice. The next thing I knew, I was taking off my clothes and throwing swings at everybody in sight." If the accused can prove that he was drugged and that he became intoxicated involuntarily, then he might be less responsible for conduct that is directly attributable to that intoxication. Keep in mind that this defense does not apply if the accused knowingly consumed drugs or alcohol.  

Denial

No matter what type of restraining order you're facing, the petitioner always bears the burden of proof. A tie goes to the respondent. If the petitioner fails to prove his or her case, then the respondent wins.

In restraining orders based on allegations of civil harassment or workplace violence, the petitioner must prove his or her case "by clear and convincing evidence". This is high burden. If the evidence is unclear or unconvincing, then the respondent wins.

In restraining orders based on allegations of domestic violence, the petitioner must prove his or her case by "reasonable proof". This a lower burden than "clear and convincing evidence", but it still requires the petitioner to convince a judge that the alleged violence or harassment occurred.

When the evidence is weak or non-existent, the respondent may prevail by simply denying the allegations. As I mentioned above, you should speak with an experienced, local attorney to determine whether or not denial is an advisable strategy in your case. The rules of evidence are complicated and it may be difficult to accurately, objectively evaluate the strength of the evidence in your own case.

If you've been served with a restraining order, call us for a free attorney consultation.  (714) 449-3335. Ask for John. Thanks for reading.

Orange County Restraining Order Lawyer

Catalina Island Court: A Nightmare in Paradise

I was back in court on Catalina Island this past Friday, May 13.

If I've learned anything from my experiences in Catalina court, it's to expect the unexpected. It doesn't take much to gum up the works at the Catalina courthouse. Delays and complications are part of the routine.

The Catalina Courthouse, nestled in the beachside community of Avalon, is only open on alternating Fridays. The judge, prosecutor, clerk and court reporter commute by helicopter from San Pedro when the court is in session. The slightest inclement weather, however, often means that the helicopters can't fly. When that happens, cases may be postponed until the court's next available date. And since the courthouse is only open every other Friday, the next available court date might be weeks or even months away.

I usually take the Catalina Express ferry to and from the island, but it's not much more reliable than the helicopter. I've been stranded on the island for days because boats couldn't cross the channel due to high winds, rough seas, or debris in the Long Beach Harbor.

Even when the weather cooperates, the human element is an unpredictable variable. I've had cases continued (routinely) because the DA or the court staff forgot to bring a file or some important paperwork from the mainland. It's all part of the experience when you go to court in Avalon.

This week, the culprit was fog. The helicopter was grounded due to poor visibility, so the court staff was stranded in San Pedro. The courtroom in Catalina was full of attorneys and defendants with cases on calendar, but nothing happens in court until the judge shows up. So we waited. And waited. And waited a little longer for the marine layer to burn off.

The court staff appeared around 11:45. The good news is that we were able to hear our cases without unnecessary continuances. The bad news is that everybody in court missed the boat that was supposed to take us back to the mainland at 12:15.

The next boat on the day's schedule left at 3:30, so we had a few hours to kill. I made myself comfortable at the Marlin Club. There are worse places to be stranded for a day.

There are plenty of great activities to enjoy on Catalina Island, but going to court is not one of them. If you're arrested or cited on Catalina, hire a local attorney to make your court appearances so you don't have to. I can save you the time, hassle and expense of experiencing this adventure for yourself. I appear in Catalina regularly, and I even make appearances for other attorneys who are unavailable to make the trip.

If you have questions about appearing in court at the Catalina courthouse, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Catalina Island Lawyer

Is Hearsay Evidence Admissible in Restraining Order Hearings?

The answer in California is, "sometimes".

To understand how it all works, you have to first understand the legal definition of "hearsay".  Hearsay is any out-of-court statement, when the statement is offered for the truth of the matter asserted (Bill testifies, "Ted told me the red car ran the light", as proof that the red car ran the light).  Hearsay also includes signed affidavits from witnesses who are not present in court to answer questions about their statements.

Hearsay evidence is considered unreliable for obvious reasons.  Generally, it is inadmissible in court unless some exception applies, and there are lots of exceptions.

Civil harassment restraining order cases are one such exception to the general rule that says hearsay is inadmissible.  The law describing civil harassment restraining orders in California specifically says that, at the time of the hearing, "the judge shall consider any testimony which is relevant".  Courts have interpreted this rule as allowing the admission of hearsay evidence in civil harassment restraining order hearings as long as that testimony is relevant (that it generally relates to the facts at issue).

And since the laws regarding workplace violence restraining orders basically mimic the language that governs civil harassment hearings, courts have also determined that hearsay evidence is admissible in workplace violence proceedings.

Domestic violence restraining orders are treated a little differently because they are governed by the Family Code rather than the Code of Civil Procedure.  The language in that code does not include the specific instruction that judges must receive all relevant evidence.  Since no hearsay exception applies in domestic violence restraining order cases, the usual rules of evidence apply and hearsay is excluded.

Even when hearsay is admissible, it is almost always advantageous to bring live witnesses to court rather than signed affidavits.  The judge may have questions and the witness may be needed in case unexpected issues arise.

If you or a loved one has questions about restraining orders in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Orange County Restraining Order Lawyer