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

Fighting Domestic Violence Charges in Orange County

Domestic violence cases are emotional and complicated by nature.  If you or a loved one has been arrested for domestic violence, you probably have a lot of questions.  Today, I want to discuss the process of fighting domestic violence charges and what to expect in court.  

What Kinds of Charges Count as "Domestic Violence"? 

The most common domestic violence charges in California are "spousal battery" (PC 243(e)(1)), and "inflicting corporal injury on a spouse / cohabitant" (PC 273.5).  

To be convicted of spousal battery, the DA must prove two things: 1) that you willfully "used unlawful force or violence upon the person of another", and 2) that you and the victim had ever been married, engaged, dating or you had a child together.  You can be convicted of spousal battery even if the victim was not your spouse.  Spousal battery is a misdemeanor, but it carries some heavy penalties that I'll discuss below.

PC 273.5 is a "wobbler", so it can be charged as either a misdemeanor or a felony.  To be convicted under this code section, the DA must prove that you and the victim had a relationship (currently or formerly married, engaged, dating, or had a child together).  Additionally, prosecutors must prove that you caused some injury that resulted in a "traumatic condition".  

"Domestic violence" also includes some crimes that we don't normally consider to be "violent", like vandalism, stalking, or even making harassing phone calls.  Since California is a community property state, anything that you have earned or purchased during your marriage is technically your spouse's property.  Even you earned the money and purchased an item for your own use, your spouse owns it (my wife technically owns some great fishing gear that she's never seen).  If you get pissed and break your own stuff, you have committed vandalism and your spouse is the victim.  

What is the Penalty for Domestic Violence?

For most misdemeanor domestic violence crimes, the maximum penalty includes a year in jail.  If the judge agrees to grant probation rather than jail time, he is required by law to impose some community service.  

If you are convicted of domestic violence, the court is also required to order a 52-week course of anger management counseling, called the "Batterer's Intervention Program".  If a judge determines that drugs or alcohol were involved, the defendant must attend additional substance abuse counseling.  

The maximum fine for most misdemeanor domestic violence offenses is $2,000.00, plus various state-imposed penalties and assessments.  Once all those court costs are tallied, you're looking at something closer to $8,000.00.  That number does not lawyer's fees, booking fees from the jail or restitution that the court may order you to pay.

A first conviction for felony domestic violence carries a maximum prison sentence of 4 years and a fine of $6,000.00.  Court costs may quadruple that number.  If you have another violent conviction within the previous 7 years, the prison time goes up to 5 years and the maximum fine goes to $10,000.00 plus court costs.  If a weapon was involved, children were present, or if the victim suffered "great bodily injury", the penalties get worse.  

If you are convicted of any felony offense, you will lose your right to purchase or possess firearms for the rest of your life.  Federal law also prohibits anyone from possessing guns if they have ever been convicted of misdemeanor domestic violence against a spouse.  California, though, goes one step farther.  If you are convicted of any misdemeanor domestic violence in California (even against a non-spouse), you will be barred from buying or possessing firearms for the next 10 years.  

Criminal Protective Orders & Restraining Orders

The judge is required by law impose a temporary Criminal Protective Order (CPO) while your domestic violence case is pending.  You will be personally served with the order when you appear for your arraignment (your first court appearance).  The terms of a CPOs can vary, depending on the seriousness of your case.  It may order you to stay away from your own house and prevent you from having contact with the accuser, or it may allow for some limited, peaceful contact.  Once you are served with a CPO, you must surrender any firearms in your possession to the local police or to a licensed firearms dealer within 48 hours.  If you are eventually convicted of domestic violence, that CPO will be extended for the duration of the time that you are on probation (usually 3-5 years).  

A CPO is a lot like a restraining order, but there are some key differences.  For one, a CPO is issued at the request of the DA during criminal proceedings.  A domestic violence restraining order is issued at the request of an individual petitioner in family court.  They have most of the same effects (stay away, have no contact, do not harass, etc.), but the procedures involved are completely different. 

Since CPOs and domestic violence restraining orders are granted by different judges in different courts, it's common to see orders that conflict with each other.  If you are facing a domestic violence case in criminal court and a related restraining order simultaneously at family court, I strongly recommend that you use the same attorney in both matters.  It's important to coordinate your defense strategy in the two separate-but-related cases.  If your attorneys aren't on the same page, it's hard to achieve the best results.

Can I Tell the Judge to Drop the Charges?

Unfortunately, the decision of whether or not to drop charges rests solely with the District Attorney.  It's very common for accusers in domestic violence cases to recant, to admit that they lied, and to ask the court to dismiss the case.  The judge will not throw it out, though, just because victim asks him to.  The victim didn't file criminal charges (the DA did), so the victim cannot simply drop them. 

In cases where the accuser recants or is uncooperative, the DA will press ahead if they believe that they have enough evidence to do so.  Prosecutors might have 911 recordings that captured events as they happened.  There are probably audio and video recordings of interviews with police at the scene, photos of injuries, statements from neighbors, medical reports, etc.  Even without the victim's testimony, the DA might still have enough evidence to put the case before a jury.  

If the accuser is changing his or her story, or if the victim does not wish to cooperate with the prosecution, speak with a qualified, local attorney to discuss your options.  You should not attempt to negotiate or coordinate with the victim on your own.  That could be considered "witness tampering", and may be a violation of the CPO.  

As I mentioned at the top, domestic violence cases are emotional and complicated by nature.  If you or a loved one is facing a domestic violence case in Orange County, call us for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Fullerton Domestic Violence Lawyer

How to Fight a Restraining Order When the Facts are BAD

I've previously written on this blog about the process of getting or fighting a restraining order in California.  If you haven't already, take a moment to read some of the basics here.  In these introductory articles, I explain the legal procedures and the issues you should be prepared to discuss at your hearing.

I've also previously written on this blog about a common situation -- fighting a restraining order when the petitioner is crazy.  Defending yourself against a crazy person requires a special strategy, and that's not the focus of this article.

Today's post is specifically about fighting a restraining order when the facts against you are BAD.  Maybe you've said or done things that you're not proud of, and maybe the petitioner has proof (emails, text messages, surveillance videos, reliable witnesses, etc.).  Even if you've behaved badly, and even if we all agree on what happened, it's not necessarily a slam dunk that the petitioner will walk out of court with a restraining order in hand.  There are several effective strategies for fighting restraining orders, even if the facts appear bad at first glance.

There are situations where it may be futile to deny your bad behavior.  If the petitioner has reliable proof, you will harm your own case by disingenuously trying to deny the facts.  You will look like a liar, you will lose your credibility, and you will lose your case.  Of course, that's not to say that you should admit to things you haven't done or confess when the evidence is weak.  I'm speaking specifically about situations where you behaved badly and the petitioner can prove it.

Bad facts must be justified, excused or explained.  A justification is a defense where you essentially argue that you did the RIGHT thing under the circumstances.  Your behavior might have been illegal or improper in other situations, but perfectly proper in that particular place and time.  "Self defense" or "defense of others" are common justifications.  In most situations, for example, it is illegal to threaten someone with a weapon.  If you threaten your neighbor with a bat to make him stop beating his wife, though, you've done a GOOD thing.  If your neighbor then files a restraining order against you for threatening him with a bat, you should admit that you engaged in that conduct (you DID threaten him with a bat), and you should explain to the judge why your actions were justified under the circumstances.

If you can't justify your actions, maybe you can excuse them. An excuse is a defense where you acknowledge that your behavior wasn't "good", but you argue that you don't deserve to accept the blame.  If, for example, you were involuntarily drugged, you might not deserve to be punished for your behavior while you were under the influence.

If your behavior can't be justified or excused, maybe it can at least be explained.  An explanation is a defense where you admit that you did the wrong thing, but you argue that your blame is mitigated or reduced under the circumstances.  For example, maybe you were provoked with offensive insults and you responded with violence.  We don't agree that your violent reaction was appropriate, but maybe we understand why you reacted the way you did.  Your outburst was out-of-character and it won't happen again.

That last part is important -- it won't happen again.  As I've previously explained on this blog, a restraining order is an "injunction".  An injunction is a court order that is intended to prevent some future harm that has not yet happened, not to punish you for some past wrongdoing.  This is tricky.  The issue that the judge must decide at the restraining order hearing is: has the petitioner proven that the respondent has harassed him or her?  Sometimes -- and this is risky -- we must acknowledge that the respondent has committed some act of violence, threats or harassment against the petitioner, but we establish that the harm is not likely to reoccur in the future.  Since we're talking about an injunction and not a criminal violation, the analysis doesn't stop with, "did this happen?".  A restraining order is not appropriate unless the harm is likely to happen in the future.  If the harm has already passed and is not likely to happen again, then a restraining order is not appropriate.  There is valid case law to support this defense, but the proper citations and legal argument must be presented effectively by an experienced, competent lawyer.  Don't try this at home.

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.

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

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 "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

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

Brag Board: 12/1/15

I know, my blog can be a downer.  Most days, this is a place for sad stories about people who have made big mistakes. Sometimes, I like to sprinkle in a few helpful tips about appearing in court, or maybe some sage advice about medical marijuana or something.

Periodically, though, I like to update this blog with some good news.  These are the success stories, and they're the reason that I love my job.

I'll be honest -- criminal defense practice can be soul-crushing sometimes.  Nobody comes into my office because they're having a great day.  Clients always tell me, "It's nice to meet you", and I respond, "No, it's not".  It's these success stories, though, that remind me of why I do what I do. A little fulfillment at the end of the day makes all the hard work worth it.

-People v. R.A. (San Bernardino):  My client's parents called the police because he was acting erratically.  Police determined that he was under the influence of drugs and arrested him.  No blood sample was taken and the police reports were completely deficient.  There wasn't much hard evidence, just vague descriptions of some bizarre behavior.  Case dismissed.

-People v. D.R. (Riverside):  My client was accused of contempt because he had allegedly tried to call an ex-girlfriend in violation of a restraining order.  We were able to show that the accuser had a rich history of making false accusations against my client.  She had lied to obtain the restraining order in the first place, and  she had sent nude photos of herself to my client after she got a restraining order against him.  Case dismissed.

-People v. C.Y. (Newport Beach - Orange County):  My client learned that he had an outstanding warrant for driving on a suspended license.  He was surprised at this news because he had never been cited or arrested.  We were able to prove that my client had been the victim of identity theft. Someone else (a family member) had falsely identified himself to police using my client's name and birthday.  Case dismissed.

In each of these cases, prosecutors chose to file criminal charges without thoroughly reviewing the evidence or taking the time to fully understand the context of each situation.  People were arrested, spent time in jail, missed work, and forked out serious money to defend themselves against charges that never should have been filed.  Luckily, my clients had the resources to take a stand, defend their rights, and protect their reputations.

Many people who appear in court every day aren't so lucky.  Maybe they're intimidated by the justice system, so they accept bad deals.  Maybe they don't understand their options, or maybe their attorneys aren't willing to invest the time and effort that it takes to achieve a fair result.

I like to take credit for each of the dismissals described above.  I wish I could claim that I brilliantly outmaneuvered the DA or that I tricked their star witness into a dramatic courtroom confession, a la Perry Mason.  The truth is that I simply did what I always do -- I devoted the appropriate attention to each of my clients.  I took the time to understand the facts, and I communicated those facts to the DA.  Once prosecutors understood the cases like I understood them, they ethically and professionally dismissed the matters.

Here's the disclaimer: do not attempt this at home.  If you've been arrested or if you're under investigation for a crime, you should NEVER speak to police or the District Attorney on your own. They understand the law and the rules of evidence.  They are not your friends.  Their job is to put you in jail.  Anything you say will be twisted, misquoted and used against you.  They are highly-paid professionals.  You need a professional on your side.

If you or a loved one is accused of a crime in Orange County, Riverside, Los Angeles or San Bernardino, call our office for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Appearing in Court at the Central Orange County Courthouse in Santa Ana: What to Expect

This post in part 2 in my series about what to expect when appearing in an Orange County courthouse.  Today, I want to discuss the largest and busiest court in the Orange County criminal justice system -- Santa Ana, A.K.A. Central Orange County.

The Santa Ana courthouse is located at 700 Civic Center Dr. West.  From the 5 Freeway, exit at Santa Ana Blvd. and follow the signs to the court.  The Central Justice Center hears criminal matters from Santa Ana, Tustin, Villa Park and Orange.

There is a large parking garage, but the fee to park is $1.50 per 20 minutes (as of 11/17/15).  There is also metered parking on surrounding streets and some lots in the area that charge a flat fee.

Since the courthouse is so big and busy, make sure you allow yourself enough time to get through the security line.  Some judges are more strict than others regarding punctuality.

The Central OC Courthouse complex features a "tower" and an "annex".  The tower is obvious -- it's the tall part.  The annex is the 3-story wing that runs along the west side of the building.

Most misdemeanors in Santa Ana are heard on the second floor of the annex.  Arraignments are usually heard in department C-54, and subsequent pre-trial conferences are conducted down the hall, in department C-48.  For more information regarding what to expect at your arraignment and what happens at a pre-trial conference, see my previous post about appearing at the North Justice Center in Fullerton.

Felonies in Santa Ana are generally handled in department C-5 until they are assigned to another room for preliminary hearings and trial.  Department C-5 is located on the second floor of the tower.

Attorneys who handle felony criminal matters in Santa Ana understand the importance of proper preparation at the early stages. Because of the building's heavy volume, judges in Santa Ana are under tremendous pressure to ensure that cases are handled expeditiously and without unnecessary delays.  They expect that attorneys are working diligently to resolve their matters from day-1.  Judges will not tolerate excessive continuances or inexplicable "foot-dragging". Attorneys from out of the area are often surprised by our local judges' hard-line policies against granting continuances.

As a criminal defense attorney who practices primarily in Orange County, I understand the importance of diving in and getting to work immediately when I'm dealing with felonies in Santa Ana.  Time is of the essence in these cases.  Discovery requests must be served on the DA at the time of arraignment to avoid delays.  Investigations must be conducted expeditiously.  I try to predict issues before they arise so that I can plan our strategy accordingly.  I even prepare motions in advance so that they're ready to file on short notice.

If you or a loved one has a criminal case in or around Orange County, call us for a free consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Santa Ana Criminal Defense Attorney

Announcing Our New Fullerton Location

I'm proud to announce the opening of our firm's newest branch office on the 9th floor of the Fullerton Towers, 1440 N. Harbor Blvd.  Located just a block from the Fullerton Courthouse (North Orange County Justice Center), this space will allow us to better serve our clients in Fullerton, Buena Park, Brea and Anaheim.

Our main office will remain in Santa Ana.  I also plan to keep branches in Riverside and San Bernardino for the convenience of my clients in the Inland Empire.

As a local boy, I'm excited about this new opportunity to serve clients in my home town.  There's no place I'd rather be.

If you or a loved one is accused of a crime in Fullerton, call for a free consultation.  (714) 505-2468. Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer

How to Get (or Fight) a Restraining Order in California: Part 2

I have previously written about the process of applying for (or fighting against) restraining orders in the State of California.  I described the nuts and bolts of preparing the petition, having the proper documents served on the opposing party and filed with the court, and appearing before a judge for a series of hearings on the matter.  That post is available here.  Part 3 in this series is available here.

Today, I wanted to discuss the strategy involved in preparing for your big day in court, along with a few things to keep in mind when you're in front of the judge.  I have assembled some helpful tips based on my experiences litigating on behalf of clients both for and against restraining orders.

Know Your Judge

The first thing I want to emphasize is the unique nature of restraining order proceedings.  These hearings are really unlike any other type of court hearing that you might have previously been involved with.

One thing that makes these hearings so unique is their informality.  While the typical rules of evidence and civil procedure still apply, judges often adopt their own courtroom policies to streamline the process and to hear a large number of cases in a limited number of courtrooms.

Every judge in every courtroom has his or her own daily routine for calling cases, hearing evidence and issuing rulings in a timely manner.  Being familiar with your judge's personal style will give you a huge advantage over your opponent.  If you've never appeared before a particular judge, you should strongly consider hiring an attorney who has.  In the alternative, you should make time to sit in and observe a day of proceedings before your court date.  Pay attention to types of arguments that the judge finds persuasive.  Being familiar with your judge and the court rules will also help you feel more confident and relaxed when it's your turn to present your case.

If you read my previous post about restraining orders (available by clicking the link, above), you know that the judge is looking for "clear and convincing" evidence of harassment.  If the petitioner is able to prove that he or she has been the victim of harassment, then the petitioner wins.  The law defines "harassment" as 1) violence, 2) credible threats of violence, or 3) a course of conduct, directed at a specific person that seriously alarms, annoys or harasses the person, and that serves no legitimate purpose.  That last part ("...that serves no legitimate purpose") is the wild card.  Judges have very different opinions about what does and does not constitute a "legitimate purpose".  For example, some judges feel that debt collection is a legitimate purpose.  Others disagree.

Abe owes Ben some money and Ben calls Abe repeatedly, asking to be repaid.  Abe is annoyed and alarmed by the repeated phone calls.  He asks Ben to stop calling him, but Ben starts showing up at his home and place of work.  Abe finally petitions for a restraining order against Ben.  Should the order be granted?

Some judges will find that Ben has engaged in a course of conduct, directed at Abe that seriously alarms, annoys and harasses Abe and that serves no legitimate purpose.  If Ben feels that Abe owes him money, he should sue Abe.  Other judges are likely to find that debt collection is a legitimate purpose, as long as no violence is used or threatened.  Being familiar with your judge and his / her opinions on the subject will give you an advantage by allowing you to craft your arguments accordingly.

Be Prepared

Proper preparation will also give you an advantage over your opponent.  This includes bringing any necessary documents to court with you for your hearing.  These documents may include phone records, copies of text messages and emails, photos of anything relevant and witnesses who will testify on your behalf.

If you have witnesses who will corroborate your side of the story, it is important that they personally appear for the hearing.  The judge may  have probing questions for this witness, so make sure you have a very clear idea of what he or she will say under examination.  You don't want to be surprised by anything.

If you intend to present witnesses, you should have those witnesses subpoenaed.  A subpoena is an order to attend court.  If you fail to issue a subpoena and the witness doesn't show up to court, you are out of luck.  You may ask for a continuance, the judge is likely to deny your request if you can't show that you did your due diligence by properly issuing a subpoena to ensure the witness's presence.

There is a process (and a fee) for issuing subpoenas to police officers who you want one to testify on your behalf.  It's a little complicated, but an attorney can help.

Consult With an Attorney

This is part of "being prepared".  Some people will appear at their restraining order hearings represented by counsel.  Others will come alone.  Of course, being accompanied by a qualified, local attorney is the best way to ensure that your case gets a compelling and convincing presentation.

A lawyer will understand the rules of evidence -- what is admissible and what is not.  Your attorney will draft the necessary documents and properly serve them on the opposing party.  He or she will issue subpoenas and prepare witnesses.  Your lawyer will make sure that you understand the important issues and that those issues are communicated to the court in a clear and concise manner. He or she should allay your anxiety and give you a confident peace of mind in knowing that things have been done correctly the first time.

Stay on Topic

This is the best advice I have for anyone involved in either side of a restraining order hearing.  I saved it for last.  Think of this tip as "dessert" -- your reward for reading my entire post.

Remember, as I mentioned above, the issue at a restraining order hearing -- the only issue -- is whether or not the petitioner can prove by clear and convincing evidence that he or she has been the victim of harassment.  That's the question that the judge must answer, and that's the only thing that the judge cares about.

The judge does not care if you're a good person.  The judge does not care if the other party is a bad person.  The judge does not care if the other party deserved whatever you did to him.  The judge does not care if the other party has lied about something irrelevant in the past.  The judge does not care if you've done nice things for the other party in the past, or if the other party has done mean things to you.  Do not waste the judge's time (and your own) with these types of arguments.  There are a lot of other cases on calendar and the judge is not interested in hearing irrelevant testimony, no matter how important these issues are to you.

Any time that a relationship devolves to the point where one person files a restraining order against another, it's safe to assume that both parties are angry about a lot of things.  You might have a lot that you want to get off your chest, but the courtroom is not the place to air these grievances. When you go off topic, the judge loses interest and you risk burying your good arguments in a pile of bad arguments.

Everything you say, every piece of evidence you present and every witness you call should be directly related to proving that harassment has (or has not) occurred.

If you or a loved one has questions about a restraining order, call my office for a free attorney consultation. Our expert staff has an excellent track record in litigating restraining orders all over Southern California.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Attorney

The Brag Board: Recent Success Stories

Until recently, I kept a running list of my success stories on my website, here.

The list is starting to get a little unwieldy, plus it's majorly inconvenient to edit the website every time I want to brag about the outcome of a case. For the sake of simplicity, I'll be posting (and boasting) here on the blog whenever I have some good news to share. For confidentiality, I've replaced the names of clients with initials.

These are few cases of which I'm particularly proud. These cases may or may not be similar to your case. Each case is unique and turns on its own specific facts. These success stories are not guarantees or predictions of future success. No attorney can accurately predict how your case will turn out without thoroughly reviewing the relevant facts and evidence.

People v. L.S. (hit & run in Riverside):  Case dismissed for violation of defendant's right to a speedy trial.  The violation occurred in 2012, but the DA failed to properly notify the defendant that a case had been filed against him. A warrant was outstanding for over 2 years before the defendant learned about his active case.

T.V. v. J.M. and related case of J.M. v. T.V. (Restraining orders in Southwest Riverside County):  I represented T.V. and successfully petitioned for a restraining order against her neighbor, J.M. J.M. then filed for a restraining order against my client, which we successfully defended (2 for 2).

S.T. v. G.P. (Restraining order in Torrance):  Successfully defended against a restraining order that my client's ex-girlfriend had filed.  She claimed that he was stalking her and sending harassing messages, but her story did not hold up under examination.

J.G. v. A.B. (Restraining order in Newport Beach):  Client's former roommate claimed he was harassing and stalking her. Successfully defended against her petitions for restraining orders (twice).


I hope to have more success stories posted here soon. If you or a loved one is accused of a crime or you have questions regarding a restraining order, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Fullerton Defense Attorney

How Do I Get (or Fight) a Restraining Order in California?

Note: There are several different types of restraining orders in California that may be issued in various circumstances.  The process varies slightly depending on which specific type of order is involved.  For example, Domestic Violence Restraining Orders are typically heard in the family court, but restraining orders based on civil harassment or workplace violence are usually heard in civil court.  This article focuses on Civil Harassment Restraining Orders, but most of the general points also apply in cases involving domestic violence, elder abuse or workplace harassment.  

Starting January 1, 2016, California courts will begin issuing "Gun Violence Restraining Orders".  Follow the link for more information.  

Individuals who have suffered harassment or domestic violence in California may appear before a judge to ask for the protection of a restraining order (hereinafter, a "RO").  A RO is a civil injunction which orders the restrained party not to commit certain acts.  The person seeking the order is called "the petitioner". The person against whom the order is sought is called "the respondent".

The courts and legislature in California have intentionally made the RO application process as simple as possible. The idea was to provide a relatively straightforward procedure that would not require expensive attorneys or deter applicants who might be intimidated by a complicated legal system.  As with most things in California, though, the process actually involves a lot more red tape than anyone intended or foresaw.  Below, I'll attempt to provide a brief outline of the process for obtaining or fighting a restraining order in the Golden State.  

Under section 527.6 of the California Code of Civil Procedure, a judge may prohibit a person from "harassing, intimidating, molesting, attacking, striking, threatening, sexually assaulting, battering, abusing, telephoning... destroying personal property, contacting...coming within a specified distance of, or disturbing the peace of [another person]".  Of course, most of the things listed here are already crimes.  If your ex-boyfriend slashes your tires, for example, he is guilty of vandalism. If you had a restraining order in effect, though, he would additionally be guilty of violating that order under PC 273.6 and / or PC 166(a)(4).  Depending on the circumstances, violating a restraining order can land your ex in state prison for up to three years.  

To request a restraining order, the petitioner must first complete a series of forms, called a "Petition".  Once the petition is fully completed and properly filed with the court, a judge will determine, "by a preponderance of the evidence", whether or not the petitioner has demonstrated reasonable proof of harassment.  The judge will render decision on the TRO on the same day that the request is filed.  If granted, the TRO may remain in effect for up to 21 days.  

Within 21 days of the petition's filing, the court will schedule a hearing on the injunction.  Between the time of the filing and the date of the hearing, the respondent may file a "response", in which he explains, excuses, justifies or denies the allegations contained in the petition.  I won't go into boring details here, but there is another series of steps that must be taken to properly serve the respondent with a notice of the hearing and to provide the court with proof of that service.  

At the hearing on the injunction, a judge must determine, "by clear and convincing evidence", whether or not unlawful harassment has occurred.  The "clear and convincing evidence" required for the issuance of the injunction is a much higher standard than the "preponderance of evidence" required for the issuance of a TRO.  If a judge agrees that the respondent's behavior has constituted "harassment", then the injunction shall be granted.  It may remain in effect for up to three years.

Note: Here's one area where domestic violence restraining orders are a little different from restraining orders based on civil harassment -- in domestic violence cases, the petitioner must prove his or her case by "reasonable proof", which is a lower bar than "by clear and convincing evidence".  Also, a domestic violence restraining order may last for up to 5 years.  

Now the big question on everyone's mind:  What kind of conduct constitutes the basis for a restraining order? Obviously, the court has neither the resources nor the inclination to involve itself in every dispute that arises between people in society.  The court cannot and will not order an asshole to be polite. There are just too many assholes and not enough courtrooms (maybe that's what I'll call my book some day -- "Too Many Assholes, Not Enough Courtrooms: The John Bussman Story").  The law defines "harassment" as: "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.  The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner".  

Of course, many of these terms are subjective and judges often have different opinions regarding their definitions.  Parties (and judges) often disagree over whether or not a particular course of conduct serves a "legitimate purpose".  Similarly, the definition of "substantial emotional distress" varies wildly from one courtroom to another.  This ambiguous language can make restraining order hearings a little unpredictable.

Generally, the court is looking for a pattern of behavior that involves violence or threats of violence, and that would cause a reasonable person to fear for his or her safety.  At these hearings the judge is asking himself, "Why should the taxpayers be involved in your dispute?  I understand that your neighbor is a jerk, but why is that society's problem?".  When ROs are denied, it is usually because the petitioner has failed make some showing of harassment, has failed to prove the alleged harassment by clear and convincing evidence, or has failed to demonstrate that harassment is likely to occur in the future.  ROs may also be denied where the petitioner has failed to provide proof to the court that the respondent has been properly served with a notice of the hearing.

If granted, a restraining order usually orders a respondent not to do something that he didn't want to do anyway.  Example: your neighbor files a restraining order because he claims he's afraid of you.  You maintain that you haven't committed any harassment, but you decide that you're not going to waste your time and money to appear at the court hearing.  This RO, even if granted, really won't effect your life either way, right?  Wrong.  A restraining order is a public record, meaning that prospective employers will see it.  Being the subject of a restraining order will negatively impact your job prospects and could disqualify you from holding certain licenses.  Also, you may not possess firearms while you are the subject of a restraining order.  If an order is granted against you, you will be ordered to sell your guns to a licensed dealer or surrender them at the local police station. Further, you could be subject to arrest for violating any provisions of the order.  That's a headache you don't want or need.  

If you're accused of violating an existing restraining order, there may be defenses that you aren't even aware of.  Often, defendants accused of restraining order violations simply plead guilty without speaking to an attorney because they assume that the case is fairly open-and-shut.  That's not always true. Defenses to restraining order violations usually turn on technical defects with the order or with some aspect of the process. These are issues that only a trained criminal defense attorney can spot and use to your advantage.  

If you've been the victim of harassment, you've been served with a notice that someone is seeking a restraining order against you, or if you're accused of violating an existing restraining order, call my office at (714) 449-3335 for a free consultation.  Ask for John.  We have experience on both sides of restraining order cases.  Showing up to court prepared, accompanied by an experienced attorney can increase your chances of success.

For more information about restraining orders in California, including some tips and advice to help you prepare for your day in court, see Part 2 of this series, available here.  When you're done with that, check out Part 3, which includes some answers to frequently asked questions.

Orange County Restraining Order Attorney