I've previously written extensively on this blog about the nuts and bolts of California restraining order laws -- how to get one, how to fight one, how to modify / terminate one, the rules of evidence that apply at restraining order hearings, and just about every other angle that I can think of.
Today, though, I want to specifically address the question of WHETHER you should seek the protection of a restraining order. If you're thinking about seeking a restraining order against someone else, read this before taking the plunge. I'll discuss the various types of restraining orders that courts in California can grant, who they protect, the types of behaviors that can be enjoined (prohibited) and a few other issues that the petitioner should consider in advance.
Getting Started
The person seeking the restraining order is called the "petitioner" (he or she files the petition to request a restraining order). The restrained person is called the "respondent" (he or she responds to the petition).
Once the petitioner files the initial request for restraining order, the court may issue temporary orders on the spot. Those orders will remain in effect until the time of a hearing, usually about 21 days later. At the hearing, each side will have an opportunity to tell their own version of the story, and also to present evidence and witnesses.
Serving the Papers on the Respondent
Between the time of filing and the time of the scheduled hearing (inside that 21-day window), the petitioner must arrange to have someone personally serve all of the appropriate documents on the respondent. The documents will notify the respondent of the date & time of the hearing, any temporary orders, and will also include the petitioner's description of why he / she feels that a restraining order is necessary.
The petitioner cannot serve the documents him / herself -- someone who is not a party to the case must perform the service. The person who serves the documents must also prepare and sign a document called a "proof of service", swearing under penalty of perjury that the papers were, in fact, personally served on the respondent. The sheriff's department will usually serve court documents for free or a small fee. The "proof of service" form must be returned to the court and filed before the time of the hearing. The court will not go forward with the hearing unless the judge is satisfied that the respondent has been properly served and notified.
Service is one of the first issues that the petitioner should consider -- do I actually know how to find the respondent? If the respondent is homeless or has moved out of the state, personal service might be impossible. If you don't realistically believe that you can find the respondent within 21 days and have him personally served, then a restraining order might be a waste of your time.
Where to File
There are a few different types of restraining orders that courts can issue. The type of order depends on the relationship of the parties. If the parties are closely related, were formerly in a relationship or share a child together, then the case would be filed as a "Request for Domestic Violence Restraining Order", and the matter would be heard in the family court. If the parties are coworkers, or if the petitioner alleges that he / she was harassed on the job, then the case would be considered "Workplace Violence" and would be heard in the civil court. Other disputes (not involving family members or co-workers) usually fall under the umbrella of "Civil Harassment" restraining orders, which are also heard in the civil court.
The venue where the case is filed can have a huge impact on the overall trial strategy. The rules vary, depending on the type of order involved and the court where the case is being heard. In cases involving domestic violence, for example, the petitioner's burden of proof is lower, but the rules of evidence are more restrictive. Speak with a qualified, local attorney (like myself) to determine the most advantageous venue for your restraining order petition.
"Harassment"
Another initial consideration should be whether or not the petitioner's allegations actually rise to a level that meets the legal definition of "harassment". Like many other words in the English language, the court's definition of "harassment" is not exactly the same as the word's definition in common usage.
In order to meet the court's standard of "harassment", the behavior in question must meet several criteria. Harassment requires a "course of conduct". A course of conduct is something that demonstrates a continuity of purpose, not merely a single, anomalous act. That course of conduct must be directed AT the petitioner. Conduct that merely affects the petitioner, but is not directed towards the petitioner, is not sufficient to warrant a restraining order, no matter how serious the effects of the conduct might be on the petitioner.
Example: Fred smokes big cigars in his backyard all day long. His neighbor, Karen, is very sensitive to cigar smoke because of some medical conditions. Fred's cigar smoke causes Karen to suffer panic attacks. She can't sleep at night and her medical conditions get much worse. If she files a restraining order against Fred to make him stop smoking, the judge would be correct to deny her request. Fred's cigar smoke might annoy Karen and it might even cause serious health consequences for her, but there is no evidence that Fred is acting with the intent to annoy or harass her. His conduct is not "directed at" her. The mere fact that his behavior affects her is not sufficient to warrant a restraining order.
Additionally, the petitioner must prove that the conduct in question serves no legal purpose, that it would cause a reasonable person to suffer emotional distress, and that it did, in fact, cause the petitioner to suffer distress. This excludes conduct that might cause the respondent to suffer serious emotional trauma, but which also serves a valid, lawful purpose (attempting to collect a debt or to serve legal papers, etc.). It also excludes conduct that seriously affects the petitioner, but would not cause a reasonable person to suffer the same emotional distress. Finally, it excludes conduct where the petitioner appears to be the aggressor, or where the petitioner has not behaved in a way that suggests he / she is seriously afraid of the respondent.
Proving the Case
The petitioner has the burden of proving the case. In domestic violence cases, the threshold is "a preponderance of the evidence". That means the petitioner must tip the scales by 51%. This is a low burden, but it's not always as easy to overcome as it sounds. If the evidence is perfectly even (i.e., the petitioner claims that something happened and the respondent simply denies it), then the petitioner has not carried the burden. In that situation, the respondent wins and order is denied.
In other types of restraining orders (civil harassment, workplace violence, etc.), the petitioner must prove the case by "clear and convincing evidence". This is a higher burden that the "preponderance of evidence" standard that applies in DVROs, but lower than the "beyond a reasonable doubt" standard that applies in criminal trials.
To prove the case, the petitioner should come to court prepared with reliable, admissible exhibits. The rules of evidence are complicated, though. Again, a qualified, local attorney (like myself) can help ensure that any exhibits are supported by the proper foundations and that they meet the court's standards for admissibility.
Both sides can also present witnesses to testify at the hearing, if those witnesses personally observed something that is relevant and material to the judge's decision. In some types of hearings, witnesses can even testify to hearsay (things that someone else told them).
The Scope of the Orders
If the petitioner can overcome those initial hurdles (finding / serving the respondent, making a compelling case to establish that harassment has actually occurred, and proving that the respondent is the person who committed the harassment), the next question for the petitioner should be -- What am I asking for? Is this something that the court actually has the authority to order?
Restraining orders typically prohibit one party from coming within some distance of certain people and places. They can also bar the respondent from contacting the petitioner and other members of the petitioner's household. Occasionally, they also include orders for the return of property / pets, transfer of cell phones, etc. If those kinds of orders would solve your problems, then a restraining order might be appropriate.
Keep in mind, though, that there are limits to the court's power and there are many things that the judge simply cannot order or enforce. The judge will not, for example, order someone to stop talking ABOUT you. The respondent will always be free to tell other people what he thinks about you, as long as he does not say it to you personally. This includes posting about you on social media, as long as the posts do not "tag" you or messages are not sent directly to you.
The court also cannot order the respondent to stop calling law enforcement to complain about you. The respondent will always be free to call the police, code enforcement, animal control, Child Protective Services, parking authorities, etc., no mater how much you feel that the complaints are unfounded. If this person is making reports that he or she knows to be false, the police will handle that on their own.
Sensitive Issues
At the time of the hearing, the petitioner will be required to tell his or her story in open court. The courtroom may be packed with strangers. The opposing party or his / her lawyer will have an opportunity to cross-examine you and to pepper you with questions about your allegations. They will try to demonstrate that you are lying or that you have some incentive to misstate the facts. The judge may also ask questions to gauge your credibility and to drill down on important details.
Petitioner should seriously think about whether or not he / she wants to answer questions about the allegations in open court and subject him/herself to cross-examination. For many petitioners, the court hearings are more stressful than the underlying harassment.
Anything said in court during a restraining order hearing becomes a public record. If you admit to some wrongdoing, your statement may be used against you later in criminal court. It might also complicate any pending criminal cases related to the underlying allegations.
Conclusion
Before investing a lot of time, effort, money and emotional bandwidth to pursue a restraining order, the petitioner should seriously consider the hurdles that must be overcome at each stage of the proceedings.
There are complicated legal issues involved with any restraining order. I can help with that part. There are also complicated emotional questions, though, that no lawyer can answer for you. The purpose of this post is to help restraining order petitioners understand, anticipate and avoid some of the common hang-ups that lead to cases being dismissed or abandoned.
If you or a loved one has questions about a restraining order in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
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