Thursday, May 19, 2016

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.


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.


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.  


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