Court Updates: Domestic Violence Restraining Orders

The courts that handle Domestic Violence Restraining Orders in Orange County got a shake-up earlier this year.  The laws haven't changed, but the names and places have. 

Previously, all Domestic Violence Restraining Orders were heard at the Lamoreaux Family Justice Center in Orange.  Due to overcrowding, though, these hearings are now being conducted at the other branch courts.  Some of the judges who now hear restraining order cases previously handled serious criminal matters and probation violations.

Some DVROs are still being heard at Lamoreaux, but the judges who officiate have all been shuffled.  Judge De La Cruz from L-63 is now at the Westminster Courthouse, and Commissioner Wilson from L-11 is hearing criminal cases in the Harbor Justice Center. 

Some of the forms used in Domestic Violence Restraining Orders were updated earlier this year, with some minor revisions to the DV-109 Notice of Court Hearing and some changes to protect confidential information of minors.  If you're using old forms, it's time to update. 

Restraining Order courts are taking a more active role in ensuring that firearms are accounted for.  If a restraining order is granted against an individual, the restrained party must surrender any firearms in his or her possession within 24 hours.  Weapons may be turned in at a local police station, stored with a licensed firearm dealer, or sold.  Proof that the weapons have been turned in, sold or stored must be filed with the court within 48 hours.  When the case called for a hearing, the judge is now required by law to check with the California Department of Justice to determine whether or not the restrained party has any firearms registered in his or her name.  If weapons are unaccounted for, the respondent can be held arrested.

Local enforcement teams from the California State Department of Justice have also been busy physically going door-to-door and collecting firearms from prohibited individuals.  Most of these actions are "knock and talk" encounters.  If the DOJ believes that someone who is the subject of a restraining order is in possession of firearms, they will simply knock on the subject's door and ask about the weapons.  If the homeowner refuses to hand over the guns, then the DOJ agents may apply for a search warrant, depending on the strength of their evidence. 

Domestic Violence Restraining Orders probably have more serious consequences now than ever before.  If you or a loved one has questions about a restraining order in Orange County, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Orange County Restraining Order Lawyer.

What We're Working On Now

It's been a while since I've published an update.  We've been busy and I'm proud of some of our recent results.  Here are a few highlights, if I may brag:

-LF v. GT:  We represented the respondent in a Civil Harassment Restraining Order.  His next door neighbor was seeking protection based on a series of baseless, frivolous allegations.  Most of the petitioner's claims were not actually grounds for a restraining order, and she had no evidence or witnesses to support other accusations she was making.  I warned the petitioner before the hearing that she had exactly zero chance of winning, and I gave her the opportunity to save her own time and mine.  Instead, she chose to waste a bunch of taxpayer resources before leaving the court sad and empty-handed.  My client was happy, though, so I'm happy.

-People v. RR:  My client was arrested last year on suspicion of DUI.  At the time of his arrest, officers found tactical gear, police scanners, a dagger and a replica firearm in his car.  The DUI was reduced down to "wet & reckless" and my client was never charged or convicted for anything related to impersonating an officer.  The items in his car were not contraband and there was no evidence that they were tied to any crime.  This week, a judge ordered the San Gabriel Police Department to return all of those items to my client.

-People v. AO:  My client was visiting Disneyland with her family.  Her mom had previously given her a "self-defense" key chain, with an object that could technically be considered "brass knuckles" attached.  She obviously didn't intend any harm and she had even flown on a commercial flight carrying the item.  Police at Disneyland, though, decided to cite her for a misdemeanor.  This week, the Anaheim City Attorney agreed to reduce the charge to an infraction so that it will not affect her criminal record.

-People v. MA:  Our defendant is a mentally ill homeless man who was charged with several counts of trespassing and being drunk in public around Orange County.  He had at least one case with the Orange County District Attorney, and a handful of others that were prosecuted by the Anaheim City Attorney.  Defendant's family got him into a residential alcohol treatment facility.  We were able to coordinate a deal with both prosecuting agencies so that our client would receive "credit for time served" in treatment.  Some counts were dismissed and others were given a "terminal disposition" (time served, no probation).

-JS v. KC:  We represented an elderly man in a restraining order that his (also elderly) wife had filed against him.  After prolonged negotiations, she agreed to dismiss the case entirely and to seek couples' therapy jointly with my client.

-People v. JG:  Our client was accused of a laundry list of felony charges, including domestic violence, child endangerment and false imprisonment.  By the time we were done, he pled to a misdemeanor with no jail time.  I call that a "win".

We're currently fighting some really interesting cases, but I can't comment while they're pending.  I hope to share some more good news soon.  Stay tuned for future success stories as they become available.

If you or a loved one has questions, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Attorney

Getting (or Fighting) a Restraining Order Against a Neighbor

Intro to Civil Harassment:  When Neighbors Go Bad

California law allow individuals who have been the victims of harassment to seek the protection of a restraining order.  There are specific types of restraining orders and special procedures depending the relationship of the parties -- coworkers can file for "workplace violence" restraining orders, family members and exes can seek "domestic violence" restraining orders, etc.  Today, I want to specifically discuss restraining orders between neighbors.

Restraining order cases that arise between neighbors are usually based on allegations of "civil harassment" (rather than workplace or domestic violence).  Restraining orders that are based on civil harassment are cleverly called "Civil Harassment Restraining Orders".  They are filed and heard in the local branch of the superior court that is closest to where the parties live and where the harassment is alleged to have occurred.

To get a restraining order against a neighbor in California, the petitioner (the person who is seeking protection) must prove that he or she has been the victim of actual violence, credible threats of immanent violence, or "harassment".  The petitioner bears the burden of proving the case by "clear and convincing evidence".  "Clear and convincing" is a higher burden than the "preponderance of evidence" standard that applies in most civil cases (and lower than the "beyond a reasonable doubt" standard that applies in criminal cases).  It means what it sounds like -- the petitioner must present enough evidence to clearly convince the judge that the alleged harassment has occurred.

If the judge finds in favor of the petitioner, he or she can order the respondent to stay a specific distance away, not to contact the petitioner by any means (including over the internet, by phone, etc.), and to stop doing whatever the court finds to constitute "harassment".  Those orders can also protect other individuals who live with the petitioner, and even pets.

Harassment, Defined

Everyone knows what "violence" and "threats" mean, but "harassment" causes a lot of confusion.  In restraining order court, the judge is looking for something more than just behavior that irritates or annoys you, no matter how irritating or annoying that behavior might be.  The legal definition of "harassment" is:

• a course of conduct (not just a single act), 
• which is directed AT a particular person (not just some behavior that affects the petitioner),
• which serves no lawful purpose (more on this below),
• which would cause a reasonable person to suffer distress, and
• which does actually cause the petitioner to suffer distress. 

That means the conduct in question must be something that your neighbor has done TO you, not just something your neighbor has done that AFFECTS you.  A good example is illegal parking.  Your neighbor might violate every single ordinance in the book by constantly parking his cars illegally.  Maybe he leaves inoperable vehicles on the street for weeks at a time, leaking oil everywhere.  This conduct might affect you because it creates an eyesore and because your guests have nowhere to park.  It might even cause you to "suffer distress", but it is not directed AT you.  Since your neighbor is not doing anything TO you, illegal parking is not the basis for a restraining order.  You may have other remedies (e.g. calling the police or Code Enforcement, etc.), but a restraining order is not appropriate here, no matter how much your neighbor's illegal parking bothers or annoys you.  The same is true for neighbors who smoke on their own property, let their lawns grow 3 feet high or who build bonfires that aggravate your asthma.  Those things might be code violations and they might cause you to suffer distress, but they're not "harassment" because they're not targeted AT you.  

What about a neighbor who constantly calls the police to report every perceived infraction?  I'm talking about the nervous old lady who reports "loud parties" at 7:30 PM -- I'm talking about the self-appointed "neighborhood watchman" who has Code Enforcement on speed dial, like Wyatt Earp of the cul-de-sac.  What can be done if you've become the target of one of these vigilantes?  Unfortunately, not much, at least not in restraining order court.  Remember, to constitute "harassment", the conduct must serve "no lawful purpose".  Calling the police to report some perceived offense is a lawful purpose, even if that conduct is directed at you and it causes you to suffer distress.  The judge will never order someone to stop calling the police.  Eventually, the police might tell them to stop calling, or they might simply stop responding.  If the police determine that someone is filing reports that they know to be false, they can pursue criminal charges against the caller.  Again, though, a restraining order is not the appropriate remedy here.

Scope of Orders, and Their Limits

The court has wide power to "enjoin" (legally prohibit) someone from doing all sorts of things that it deems to be "harassment".  As mentioned above, the judge can order someone to stay away from you, your home, your workplace, your vehicle, your school, your children's school, your children's daycare, and any other place where the judge finds that harassment is likely to occur.

The respondent can be ordered not to contact you by any means, directly or indirectly.  That includes in person, by phone, text, mail, etc.  That even includes asking someone else to pass along a message to you, except through an attorney.

If the respondent violates any of those orders, he or she can be arrested for "contempt of court".  If some other person knows about the restraining order and helps the respondent violate it (by passing along an apology, for instance), that person can also be arrested.

The judge cannot, however, order someone to stop talking about you if you're not present.  If someone is spreading false, defamatory information about you, you may have a lawsuit against that person, especially if you can prove that you've actually been harmed by the lies.  Again, though, a restraining order is not the appropriate remedy.

Restraining Orders and Firearms

If a restraining order is granted, even temporarily, the respondent will be ordered to immediately surrender any firearms under his control to the local police or to a licensed firearms dealer.  The State Department of Justice will notify the court if the respondent has any firearms registered in his name, and whether or not those weapons have been accounted for.

If the DOJ's records indicate that the respondent may have guns that have not been surrendered, agents will visit the respondent's home and perform a "knock and talk".  Inspectors might ask about specific weapons, and they might ask permission to search the premises for the missing firearms.  The respondent is not obligated to let them in unless agents present a search warrant.  (NOTE:  Generally, any adult who is present at the time can give agents consent to a search.  If the husband refuses and the wife allows it, for instance, then agents have consent.  Make sure your family members understand this, and NEVER GIVE CONSENT TO A SEARCH!!!)

If the respondent / homeowner refuses to allow agents to search his or her home, and inspectors believe he is illegally in possession of firearms, inspectors might take their evidence to a local judge and request a search warrant.  The governor recently granted more funding to these regional teams of DOJ investigators.  They're going door-to-door daily, gradually clearing a backlog of "prohibited persons" and missing firearms.

If you are served with a restraining order and you are required to surrender your firearms, call our office to discuss your options.  If your weapons have great sentimental value, you may be able to legally transfer them to a friend or family member.  If they have great financial value, you may also be able to sell them for their fair market value.  You may also be permitted to store them for a longer period if you expect to recover them later.

Free Attorney Consultation

If you or a loved one has problems with a neighbor, or questions about restraining orders in general, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Restraining Order Lawyer

What to Do if You've Been Served With a Restraining Order

If you've been served with a restraining order, you must immediately begin the process of preparing your defense.  That process should start by consulting with a qualified, local attorney to discuss your options and to coordinate your strategy.  A competent attorney will understand the types of arguments that are likely to be effective, and how to present admissible evidence to support your position.

If you possess firearms, you must surrender them to the local police or to a licensed gun dealer within 48 hours.  You may not simply sell them to a friend or ask a family member to hold them for you.  The police or the gun dealer will prepare some paperwork that you must file with the court.  Before your hearing, the judge will confirm that any firearms registered in your name have been accounted for.

Most importantly, though, you must resist the impulse to make matters worse.  Do not contact the petitioner in any way.  Do not ask someone else to contact the petitioner or to pass along a message on your behalf.  Do not try to "fix" the situation yourself by apologizing or by attempting to "smooth things out".  Remember, a temporary restraining order IS a restraining order.  If you violate it, you will be arrested and prosecuted.  Your violation will also be used against you at your hearing.  If the judge finds that you have violated the temporary order, he or she will almost certainly grant a permanent restraining order against you, even if the original petition was weak or deficient.  As the court sees it, your violation of the temporary order demonstrates that you are impulsive, you don't respect the law, and you are probably dangerous.

Even if the petitioner attempts to contact you while the temporary restraining order is in effect, you may not respond.  This seems unfair, and it is, but remember that the temporary restraining order prohibits you from contacting the petitioner, not vice versa.  If a judge has ordered you not to contact the petitioner, the petitioner cannot simply grant you permission to disobey the judge.

If you have some valid reason why you NEED to contact the petitioner before your hearing (e.g. you need to pick up your medication from her house, etc.), or you want to negotiate a dismissal outside of court, that communication must be done through your attorney.  Your lawyer is the ONLY person who may contact the petitioner or pass along messages to her on your behalf.

If you or a loved one has been served with a temporary restraining order in Southern California, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

What Kind of Lawyer Do I Need for a Restraining Order?

If you're seeking the protection of a restraining order, or if you've been served with one, you should consider retaining a qualified, local attorney to assist you throughout the process.  Having the right lawyer by your side will significantly increase your chances of success.  An experienced attorney will understand the rules of evidence and the legal issues at stake, so that you can craft a compelling argument and present your case in the most favorable light possible.

But what kind of lawyer should you be looking for?  There are several different types of restraining orders in California, and they cross over a few different legal disciplines.  A restraining order may be issued based on allegations of domestic violence, civil harassment, workplace violence, elder abuse or gun violence.  Depending on the type of order requested, petitions may be heard in family court or in civil court.  And depending on which court hears the case, the rules of evidence will vary.  There might also be potentially overlapping criminal issues when a restraining order petition is based on some alleged criminal misconduct.

Very few lawyers in California focus their practices specifically on restraining orders.  The state bar doesn't even offer a certification for "Restraining Order Specialist", as they do for some other specific fields of law.  Most "restraining order lawyers" are actually experts in some other, related field.  That could be family law, criminal defense, or general civil litigation.  But that doesn't mean that every "general practice" civil lawyer is well-versed in the law regarding restraining orders.  I'm often surprised to see very competent, well-respected attorneys bumble their way through restraining order hearings because they're not familiar with the unique rules and procedures that apply in restraining order court. Unfortunately, some great lawyers just don't understand the important distinctions between a domestic violence restraining order and, say, a civil harassment restraining order.  Hiring a great attorney can backfire if he or she isn't the right attorney.

If you have questions about restraining orders in California, you should resist the impulse to ask your lawyer neighbor or some family friend who specializes in construction defect law.  He or she might be very well-versed in some other legal specialty, but completely lost in a restraining order hearing.  Hiring an attorney simply because you know him isn't always a smart move.

You should also resist the impulse to hire the most expensive or well-known attorney you can think of.  Again, that person might be the world's most successful worker's comp lawyer, but if he doesn't have experience in restraining order court, then he's probably not right for you.

Our firm has extensive experience with all types of restraining orders in California.  We have successfully represented petitioners and respondents on both sides of these issues throughout Orange County, Los Angeles and Riverside.  We understand the rules of evidence and how to present your story effectively so that you can walk away with the best results possible.

If you or a loved one has questions about a restraining order in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Is it Worth My Time to Fight a Restraining Order?

I believe I've posted about this question before, but I still hear it a few times every week. Callers tell me that an ex-girlfriend or a former co-worker has filed a restraining order petition against them. They don't see the petitioner anymore and they have no reason or desire to have further contact with that person. As they see it, a restraining order really wouldn't affect their life in any way -- it wouldn't prohibit them from doing anything that they really want to do. Why take the time and effort to fight it?

There are plenty of good reasons to oppose a restraining order, even if you agree to the petitioner's basic demands (e.g. stay away, have no contact, do not follow or stalk, etc.), and even if you have no interest in doing those things anyway. Having a restraining order issued against you will affect your life in ways that might not be obvious. These court orders are public records. Subjects of restraining orders forfeit various rights that the rest of us enjoy. Being the subject of a restraining order may also lead to some other nightmare scenarios that I've seen, and that I'll describe below.

Even if you're not interested in the restraining order, your employer might be. As mentioned, restraining orders are public records. They're available for anyone to see, with or without your permission. They are easily discovered by a simple background check. Most courts even put this information online now. Being the subject of a restraining order can make you ineligible to hold certain jobs or professional licenses. Good luck getting a security clearance or a Global Entry pass with an active restraining order against you.

Anyone who is the subject of a restraining order is prohibited from owning or possessing firearms. If there's a restraining order against you, you may not even have access to firearms that someone else in your home owns. If you already own guns, you will be ordered to surrender them to local police, or else sell them to a licensed dealer immediately. You may not simply give them or "sell" them to a friend or family member for safekeeping. If your job requires you to carry a weapon in the course of your duties, you might be looking for a new job. Again, good luck finding work with a restraining order on your record.

Having a restraining order issued against you may also make you vulnerable to false accusations or "accidental violations". If the petitioner spots you (or someone who looks like you) in a restaurant or a public place, she is likely to call the police. Even if you haven't "knowingly and willfully" violated the order, you can expect an unpleasant and embarrassing encounter with investigators. I've handled too many cases where my client accidentally butt-dialed an ex-girlfriend, allegedly violating an active restraining order. If your email gets hacked and your account starts sending spam messages to everyone in your address book, you could end up back in court trying to explain yourself.

Take restraining orders seriously, and make the necessary preparations to ensure the best outcome possible for your case. Of course, the best way to effectively prepare for your day in court is to retain a qualified, local expert. If you or a loved one has questions about restraining orders, call us for a free attorney consultation.  (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

How to Fight a Restraining Order When the Petitioner is Crazy

One of the inherent problems in restraining order court is that anybody can file a petition against anybody else, at any time.  This often means that the petitioner (the person seeking the protection of a restraining order), is crazy.  He or she may be paranoid, delusional, senile, drug-addled, vindictive, or just plain nuts.

If a crazy person is seeking a restraining order against you, presenting an effective defense can be tricky.  It is not sufficient to simply argue that the petitioner is crazy.  Instead, you must carefully show the judge that your opponent is detached from reality, and that the allegations against you are entirely made up.  The goal here is to prove that the accusations against you are false, not just to prove that the person making the accusations is erratic or afflicted with some mental disease.

This defense strategy can be more complicated and difficult than some people expect.  Even if you have personal knowledge of the petitioner's mental health problems, the rules of evidence will restrict the types of arguments that you're allowed to present in court.  First of all, you may not testify that somebody else told you about the petitioner's diagnosis.  That would be hearsay.  The person who actually made that diagnosis must appear in court to testify.  If that person is the petitioner's doctor, then the rules of confidentiality would prohibit the doctor from revealing the petitioner's medical records.

In some types of restraining order hearings, hearsay is admissible.  Even if this evidence may come in under the hearsay rules, it may still be excluded if you are not qualified to render an opinion on the subject.  Before any evidence is admissible in court, the witness must "lay the foundation" -- that is, you must prove that you possess the knowledge that you're now presenting as fact.  Psychiatric diagnoses are obviously complicated medical issues.  Even if you've personally observed "crazy" behavior by the petitioner, the judge will not allow you to express an opinion about the petitioner's medical condition or mental state because you're simply not qualified to do so.

Remember also that even crazy people have the right to be free from civil harassment and domestic violence.  If your defense is that the petitioner is crazy, you must be careful not to blame the victim for your harassment.  You must be extremely mindful not to argue that the petitioner deserves to be harassed because she is crazy.  Instead, you must argue that you have not harassed anybody.  If the petitioner believes that you have harassed her, you must prove that she is mistaken and that her false beliefs are rooted in delusions.  This is done by effectively cross-examining the witness in court.  A qualified attorney knows how to ask probing questions, drill down on the details, let the witness discuss her false beliefs, and give her enough rope to hang herself.  A lawyer who is experienced in the art of cross-examination will not argue with the witness or become confrontational.  Instead, the witness should have the opportunity to destroy her own credibility.

Last, and most important, is to always consider the relevance of any argument that you want to present.  The big question in restraining order court is always whether or not the petitioner can prove that the respondent has engaged in harassment or domestic violence.  The court is not interested in determining whether or not you're a good person, or whether the opposing party is a bad person, or whether someone has lied about something unrelated in the past, or who was responsible for the breakup, or even if one party suffers from a mental illness.  Those issues might be important to you, and they might be loosely related to something in your case, but the court simply does not care.  It might be tempting, but you must not waste the court's time and your own by focusing on details that are legally irrelevant.

Every piece of evidence that you present as the respondent must support the fact that you have not engaged in conduct that would legally justify the issuance of a restraining order.  If your argument is that the petitioner is crazy, you must prove that the allegations against you are untrue.  The petitioner's mental health issues are not an excuse for your bad behavior.  Instead, those delusions help explain why the petitioner falsely believes that you have done something inappropriate.

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

Send an Offensive Text Message, Lose Your Gun Rights

Many of my clients are shocked to learn how quickly a rude or offensive text message can cost them their gun rights in California.  Don't make that mistake.  Before you hit "send", think about what you're willing to sacrifice.

California has a very permissive system of issuing restraining orders, especially in cases of alleged domestic violence -- and the definition of "domestic violence" in California is expansive.  The court will issue a restraining order when the petitioner can prove "by a preponderance of the evidence" (a very low burden) that the respondent has "harassed" him or her.  "Harassment" includes some behavior that we might not consider to be "abuse" or "domestic violence" within the conventional meanings of those terms.  Harassment in California includes any course of conduct, directed at a specific person, which serves no lawful purpose, and which would cause a reasonable person to suffer emotional distress.

"Harassment" in restraining order hearings often includes rude, offensive or insulting text messages or emails.  Calling your ex-girlfriend a "bitch" in a text message may be the grounds for the court to slap you with domestic violence restraining order, even if you never hurt or threatened anyone.  In many cases, a judge may find that an insulting text message meets the definition of "harassment", described above.

A judge can also issue a domestic violence restraining order when one party has sent repeated, unwanted messages to an ex.  Depending on the circumstances, sending annoying text messages may constitute "harassment".  The messages don't even have to be rude or insulting. If your ex-girlfriend has asked you to stop calling or texting, you are legally obligated to respect her wishes.  If you continue sending her unwanted messages, she may take those screen shots to court and get a restraining order against you.

Anyone who is the subject of a restraining order in California must immediately surrender all their firearms to the local police, or else sell them to a licensed gun dealer.  You may not simply "sell" your collection to a friend or have a family member hold your weapons.  You also may not buy, possess or even have access to firearms while the restraining order is in effect.  If you're a hunter, collector or target shooter, you may be legally barred from enjoying your hobbies for up to 5 years.

The laws and procedures regarding restraining orders in California are complicated. If you or a loved one has questions about the process, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Orange County Restraining Orders

What Counts as "Harassment" in a Restraining Order Case?

The law is full of strange words, like "estoppel", "pretermission" and "res judicata". It's also full of familiar words that carry special, legal definitions which differ from those words' ordinary, everyday usage. One of these common words that carries a special, legal definition -- and one that seems to cause a lot of confusion -- is "harassment".

In normal English conversation, "harassment" may describe behavior that annoys or bothers someone. In restraining order court, though, it carries a much more narrow and specific definition. If you're involved in any type of restraining order proceeding, it's crucially important that you understand how courts define "harassment".

As I've previously discussed on this blog, restraining orders may be granted when the petitioner can prove that he or she has been harassed by the respondent, or that the respondent has committed actual violence or credible threats of violence against the petitioner. Violence and threats are pretty self-defining, so they don't require a lot of explanation here.

As I've also discussed, courts are not in the business of getting involved in every situation where one person is annoyed by another person's behavior. Being the subject of a restraining order may have severe consequences for the person whose behavior is restrained. He or she will be stripped of their right to own or possess firearms. The restraining order will become a public record which may affect the restrained party's employment. It could result in the loss of some professional licenses. Courts don't take these consequences lightly. They will not strip people of their rights just because their behavior annoys or bothers someone else.

To prove "harassment" in a restraining order hearing, the petitioner must establish several elements:

• That the respondent has engaged in a "course of conduct". Harassment involves a pattern of behavior that takes place over time, not just on a single occasion. That course of conduct must demonstrate a "continuity of purpose".
• The course of conduct was directed at the petitioner. It is not sufficient to simply prove that the respondent is an asshole in general, has been an asshole to other people on other occasions, or that something he does annoys you. For example, the court will not grant a restraining order just because your neighbor smokes a cigar inside his apartment, the cigar smoke comes through the vents into your apartment, and your neighbor is aggressive towards other people in the complex. The court does not care if you're especially sensitive to cigar smoke or if other people are afraid of your neighbor. Those behaviors might annoy you, cause you distress and interfere with your right to peacefully enjoy the privacy of your own residence, but they're not intentionally "directed at you", so they're not the basis for a restraining order. 
• The course of conduct serves no lawful purpose except to annoy you or to cause you distress. If your neighbor constantly complains to Code Enforcement over every ticky-tacky parking violation, your neighbor is a whiny asshole. Unfortunately, you cannot get a restraining order against someone for being a whiner. The court will not order someone to stop whining if they have some lawful basis for doing so, no matter how much their whiny behavior annoys you.  
• The behavior would cause a reasonable person to suffer substantial emotional distress. It's necessary but not sufficient to prove that the behavior caused you to suffer emotional distress. The court does not care if you're especially sensitive, fragile, or unreasonable -- those are not compelling reasons to strip someone else of their rights. If you want a restraining order, you must prove that the respondent's behavior was so outrageous that a normal, healthy individual would have been seriously distressed by it. I've been involved in plenty of cases where the petitioner comes to court with stacks of records from their therapist to demonstrate how the respondent's mildly-annoying behavior has exacerbated his or her preexisting health condition (anxiety, insomnia, depression, high blood pressure, etc.). It sounds cold, but the court isn't concerned with any of those things if the respondent's behavior would not have similar effects on an otherwise healthy, normal person. 
• Also keep in mind that "substantial emotional distress" is more that mere annoyance. I've had plenty of roommates, neighbors, coworkers and classmates whose behavior has annoyed me. We all have. Most of those annoyances, though, are not sufficient grounds for the issuance of a restraining order. At the risk of repeating myself, courts are not in the business of getting involved with every dispute that arises between individuals. They cannot and will not order someone to be polite. If rudeness were a legal cause of action, we'd need a bigger courthouse.  

Harassment can be much more complicated and difficult to establish than many litigants imagine. Even if you have been the victim of harassment, proving it in court with reliable, admissible evidence is another story. 

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

Orange County Restraining Order Lawyer

What We're Working on Now

It's been a busy summer at our office and I know I've been neglecting this blog for the past month. We've handled some really interesting cases and we're continuing to help our clients achieve some fantastic results. Here's a sample of what we're working on now:

-Domestic violence trial in Orange County:  I'm scheduled to start a trial in Newport Beach this week. We were set to begin on 9/26, but it's been postponed a couple times already.  It looks like we should be ready to start selecting jurors tomorrow.  I can't disclose too many details right now, but I can attest that the accusations against my client are nonsense.  Stay tuned for updates as they become available.

-Under the influence of a controlled substance in Riverside (Indio, Coachella Festival):  I LOVE defending cases that arise at the big music festivals in Southern California.  Police arrest so many people so quickly that glaring mistakes are inevitable.  They do a terrible job of collecting evidence, writing detailed reports, filing cases in a timely manner, and preparing to appear in court.  If you're arrested at Coachella, the HARD festival, or any other major EDM event in the area, you should definitely consider speaking with a qualified, local attorney before you make any decisions.

We recently represented a young man who had been picked up at Coachella five years ago.  At the time, police believed that he was under the influence of drugs, but they took him to a mental health hospital rather than jail.  He was informed that he was not under arrest and that he was only being held for observation to ensure his own safety.  His parents were advised that no court appearances would be necessary.  Six months later, the DA filed criminal charges against my client, but they never made any effort to notify him that a court date had been scheduled.  Now (five years later), he applied for a job and he learned that he had an outstanding arrest warrant.

We filed a motion to dismiss the case due to a violation of my client's constitutional right to a speedy trial. When there has been a long delay between the filing of charges and the client's first court appearance, the burden falls on the DA to explain or justify the delay.  We argued that the delay in this case was unreasonable and the judge agreed.  Case dismissed.

-Child Abuse in Los Angeles (West Covina):  My client had used (what I consider to be) reasonable force to discipline an especially-obstinate child.  The child was not injured, the evidence was weak, and the force she used against the child was not clearly "abusive" or "excessive".

My client chose to voluntarily begin parenting / anger management counseling before the case ever ended up in court.  The DA agreed to dismiss the case if my client continues to participate in the counseling that she was already attending.  I call that a "win".

-Restraining Orders:  We're continuing to achieve fantastic results with restraining order hearings. This summer, I've handled restraining order cases from San Diego to Chatsworth, and from Long Beach to San Bernardino.  My cases have involved accusations by parents against their children, children against their parents, neighbors against each other, and businesses against their employees.  These cases are all unique, and I think they're a lot of fun to handle.

I'm also defending a couple cases right now where my clients are accused of violating existing restraining orders.

If you or a loved one has a criminal matter or a restraining order case in Southern California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Attorney

What is the Best Evidence to Present at a Restraining Order Hearing?

In the old days, restraining order hearings typically involved one person's word against another's. The petitioner would testify that her ex-boyfriend threatened her. The respondent would deny that he ever made any threats, and the judge would try to determine which party was more credible.

Today, more and more restraining orders involve electronically recorded statements. These may include text messages, emails, voice mails and messages sent over social media. The judge doesn't have to weigh a witness's credibility based on some arbitrary guess anymore; he or she can simply read the messages or listen to the voice mail recordings to determine who is lying and what was said.

A single message can make or break your case. It often does. In my experience, judges are looking for that "smoking gun" that makes their job so much easier. On any given day, the court has a lot of cases to get through. They don't have the time or the patience to conduct long, drawn-out hearings. If the petitioner comes to court prepared with a copy of a text message from the respondent that clearly conveys a threat of violence, the judge can quickly grant the restraining order and move on to the next case.

The same is true for the respondent. If you've been served with a restraining order but you have messages from the petitioner in which the petitioner admits to filing the case for an improper purpose, you should be prepared to show those messages to the judge. If the petitioner has some message from you in which you make some statement that could be construed as a threat, you should be prepared to justify, explain or deny the accusation.

If you have a very valuable message that clearly proves your case, print it out, make a couple copies, and bring it to your court hearing. The judge will not look at your phone, and your phone cannot be filed as evidence. Do not alter or edit the message in any way. Make sure that the message is legible and organized into some format so that the judge can make sense of it.

The judge is not interested in reading your entire email history since the beginning of time. He or she wants the short version of the story. If you have some valuable message, make it the centerpiece of your argument. Do not bury your best evidence in a sea of worthless nonsense. Remember, you have a very limited amount of time to present your arguments. Do not waste that time presenting useless evidence.

You should also consult with an experienced expert to determine whether or not your message is really as valuable as you believe. My regular readers are tired of hearing this, but always remember the "name of the game" in restraining order hearings: keeping it relevant and being concise. That means making sure that your arguments actually go to the issue and help prove your point. The issue at your hearing is whether or not the respondent has committed violence against the petitioner, has threatened to commit violence against the petitioner, or has engaged in a course of conduct against the petitioner that serves no lawful purpose except to annoy or harass the petitioner. The judge does not care if you're a good person, or if the opposing party is a bad person, or if you've done nice things for them in the past, or if they've done mean things to you in the past. The judge is not interested in determining who was at fault for your breakup or who drinks too much. Those arguments are a waste of your time and the judge's patience.

If you have questions about restraining orders in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John. We have extensive experience litigating all types of restraining order cases, including cases based on domestic violence, civil harassment, workplace violence and elder abuse.

Thanks for reading.

Orange County Restraining Order Lawyer

What Counts as "Stalking" in California?

"Stalking" is one of those legal terms that seems to be misused more often than it's used correctly. I see litigants throw it around loosely to describe any behavior that involves "following", "confronting" or "encountering by chance in a public place" if that behavior makes them feel uncomfortable.

The legal definition of "stalking", though, is a little more narrow. Section 646.9 of the California Penal Code spells out the elements and the intent that must be proven before a person can be found guilty of the crime of stalking. Here's the short version:

• "Stalking" involves repeated following or harassing behavior. 
• The following or harassing must be "willful" and "malicious". 
• AND, the person doing the following must make a credible threat with the intent to place the victim in reasonable fear for his or her safety.  

The crime of "stalking", then, involves more than merely following, researching, investigating or performing surveillance a victim. Those behaviors may cross the line into "stalking" if the prosecutor can prove that the defendant threatened the victim with the intent to cause fear.  

One element that is NOT included within the legal definition of "stalking" is that the crime be committed in person. We think of "stalking" as physically following somebody or parking in front of their house, but the crime of stalking may be completed online or even through the mail. If you send repeated, harassing messages and threats over social media with the intent to cause fear, you may be convicted of stalking in California. You can be tried in California if the target of your harassment lives here, even if you live out of state.  

Even if your behavior does not technically rise to the level of criminal "stalking", you may still be charged and convicted for some "lesser included offense", like making criminal threats (PC 422), annoying / harassing a minor (PC 647.6), or making repeated phone calls with the intent to harass (PC 647m). That behavior could also form the basis for a restraining order against you if a court finds that it meets the legal definition of "harassment".

There are many possible defenses to charges of stalking, but only a qualified attorney can help you determine the best argument for your particular case. If you or a loved one has questions about stalking in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading. 

Orange County Stalking Lawyer

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

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

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

Is Kaiser Hospital Pursuing Frivolous Restraining Orders Against its Patients?

In the past two weeks, I have personally encountered two separate people who have been served with very questionable restraining orders by Kaiser Hospitals.  Two isolated cases don't necessarily make a pattern, but they raise some questions.

A couple weeks ago, I successfully defended a young quadriplegic man against a nonsense "workplace violence" restraining order that Kaiser Hospital had filed on behalf of several nurses. The nurses unconvincingly claimed that they feared for their safety, and requested that the court intercede by evicting a paralyzed man from his hospital bed.  A judge declined to issue the order and my client was permitted to remain in the facility.  

A few days later, I spoke to an MS patient who claims that Kaiser obtained a bogus "civil harassment" restraining order against her.  I was not personally involved in her case, but she tells me that she was treated at Kaiser and that she had sent her doctor a "thank you" gift.  She denies engaging in any behavior that would constitute the basis for a restraining order and she was genuinely confused as to why her hospital would take such a course of action. Unfortunately, she failed to respond to the restraining order petition in a timely manner and the court entered a default judgement against her.

Are these two anecdotal cases indicative of a larger pattern?  Are Kaiser Hospitals abusing the restraining order process against their own patients?  I don't have enough information to make such a bold accusation right now, but it's something that I'm genuinely interested in learning more about. 

If you or a loved one has been served with a restraining order by Kaiser Hospitals, call us for a free consultation.  (714) 449-3335.  

Our office has extensive experience in defending against restraining order petitions in all Southern California courts.  If we can successfully show that Kaiser is abusing the process by pursuing frivolous restraining orders against its own patients, you may be entitled to compensation.   

Thanks for reading.  

Orange County Restraining Order Lawyer

Contempt of Court / Violating a Restraining Order

I've previously written extensively on this blog about restraining orders in California -- how to get them, how to fight them, how to prepare for your day in court, and how to effectively present your case to the judge. Those posts are available here, here, and here.

Today, I want to discuss the laws that apply when a person is accused of violating an existing restraining order. In California, those laws are codified in section 166(a)(4) of the Penal Code, commonly referred to "Contempt of Court", and in PC 273.6. Violating an existing restraining order is a misdemeanor. Depending on the circumstances and your criminal record, it may be punishable by up to 1 year in jail and a $5,000 fine.

In order to be found guilty of contempt under PC 166(a)(4), the prosecutor must prove 4 things beyond a reasonable doubt:

1)  That a court had lawfully ordered you to do a specific thing (or to refrain from doing a specific thing),
2)  That you knew about the order and its contents,
3)  That you had the ability to follow the order, and
4)  That you violated the order.

You can be charged with violating a restraining order even if you're not the person named in the restraining order. A non-party (someone who was not involved in either side of the restraining order petition) is guilty of contempt if he knows about the order and he helps the restrained person violate it. For example, if your friend has a restraining order against him and he asks you to pass a message to the protected party, you can be charged with contempt if you do so.

There are several possible defenses if you're accused of violating a restraining order:

You didn't do it

As mentioned above, the prosecutor bears the burden of proving you guilty beyond a reasonable doubt. If they cannot prove that you committed the act in question, then you are not guilty. Just because a message was sent from your phone or your computer, the DA might have difficulty proving that you actually sent the message.

You might also admit that you engaged in some particular conduct, but argue that this conduct did not technically violate the restraining order. For example: You were ordered to stay away from your ex-girlfriend's place of work. You were seen in the area, but she doesn't work there any more.You might have a solid argument here that your conduct did not actually violate the judge's order.

The order itself was unlawful or unconstitutional 

You cannot be convicted of violating an unlawful restraining order. This is a difficult argument to make, though. If you disagree with a restraining order or you feel like you did not receive an adequate opportunity to present your case when the order was initially granted, you must appeal the order within a very short time period. If you fail to properly file the appeal within that time period, you will be barred from doing so in the future.

You did not know about the restraining order or its contents

The prosecutor only needs to prove that you had an opportunity to learn about the contents of the restraining order. They do not need to prove that you actually read it, or even that you were properly served with a copy of the order after it was granted.

Usually, the DA will satisfy this element by simply proving that you were served with the order. If you were served, then you are presumed to have knowledge of the order and its contents. Willfully refusing to read the order is no defense.

Even if you were never served, the DA may be still able to prove that you had knowledge of the order and intentionally avoided service. Again, this is no defense.

You were unable to comply with the order

To be convicted of contempt, the DA must prove that you acted "willfully" or "intentionally", depending on the circumstances. If the court ordered you to do something specific and you are physically unable to do that thing, then you have not violated the court's order. For example:  The judge granted a restraining order against you and he ordered you to surrender your firearms at the local police station. You have been in jail or in the hospital ever since the incident and you have not yet had an opportunity to comply with the order. In this case, you are not guilty of contempt because you have not "willfully" or "intentionally" violated the judge's instructions.

If you or a loved one is accused of violating a restraining order in California, call our office for a free consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Brag Board: 7/20/15

My winning streak with restraining orders is alive and well.  Looking back over my records, I believe that's about 9 consecutive wins.  It just goes to show that coming to court properly prepared (and properly represented by competent counsel), can make all the difference when you are seeking or defending against a restraining order.

On Friday, we litigated S.N. v. A.S. in Orange County Family Court.  My client's ex-girlfriend accused him of abuse that allegedly occurred during the course of their relationship.  My client followed my advice and stuck to his proverbial guns.  His ex-girlfriend's story fell apart under cross-examination and her requested order was denied.  We were able to save my client's job, his reputation and his freedom.

Of course, every case is unique.  Past performance is no guarantee of future success.  I cannot promise that your case will have the same outcome.  Judges in restraining order cases can be notoriously arbitrary and sometimes their rulings come more from their "gut" than from any established case law.  It's helpful to understand how judges tick and what sorts of arguments they tend to find persuasive -- that's where I step in.  I know how to boil your case down to the clearest and most concise summary of the important issues, without the filler that bores and annoys judges.  I've found (especially in restraining order cases), that both sides sincerely believe that they are right.  The "winner" in restraining order cases is usually whichever party can best articulate their version of the important facts.

Here are some helpful tips if you want to LOSE a restraining order case:

-Tell a rambling story with no discernible beginning, middle or end.  

-Come to court unprepared (no attorney, no documentation, no witnesses and no understanding of how the process works).

-Bring witnesses and instruct them to lie.  They will be separated during each of their testimony.  They will be cross-examined by the opposing counsel and by the judge.  If their stories are obviously fabricated, their lies will be exposed.

-Bury your good arguments under a bunch of irrelevant "filler".  "Filler" includes anything other than the facts that are actually at issue.  As I mentioned in my 3-part series on restraining orders, the judge does not care if the other party is a jerk, a liar, a cheater, a bitch, a pervert, or even a Red Sox fan.  The judge only cares about whether or not the petitioner can prove by clear and convincing evidence that harassment has occurred.  If the petitioner can prove harassment, then the petitioner wins.  If the petitioner cannot prove harassment, then the petitioner loses.  It's that simple.

If you or a loved one has questions about restraining orders in California, call us for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Brag Board 6/1/15

It's been a while since I've posted any fresh content here and I apologize for the delay.  Since we last spoke, I've had a handful of success stories that I wanted to share, so here they are:

-People v. N.B. (Riverside):  My client was accused of attempting to kidnap a little girl in Moreno Valley.  We were able to prove that the victim had misidentified the suspect -- my client was nowhere near the scene.  Case dismissed.

-K.H. v. S.G., and C.F. v. S.G. (Orange County):  Two separate people were seeking restraining orders against my client.  We successfully mediated one case without the issuance of an order.  The other case was dismissed.  My client walked away with no restraining orders against her.

-People v. R.P. (Pomona):  Jury trial for a client who was accused of molesting his niece over a period of 10 years.  Jury was not convinced beyond a reasonable doubt that the allegations were true.  Hung jury / mistrial.

-People v. G.B. (Orange County):  My client drunkenly wandered into someone's house and refused to leave.  Case dismissed upon completion of an alcohol class.

That's sample of my current caseload.  I hope to have some more success stories posted here soon.  Until then, thanks for reading.

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