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 Can I Do About an Old Arrest Warrant in California?

An outstanding arrest warrant will basically ruin your life until it is addressed.  Your old warrant will never simply go away on its own.  Luckily, you've already taken the first step toward fixing the problem -- you Googled it and you found this blog post.  Now, let's take the next steps to clear up this old headache for good.

Arrest warrants can be issued for a number of different reasons.  The most common situation we see arises when a defendant has failed to appear at a scheduled court date.  Maybe it was your fault -- you knew about it, but you were afraid appear.  Maybe you couldn't afford to miss work, you couldn't get a ride to court, or you had trouble arranging childcare for your kids.  Maybe it wasn't your fault at all -- someone else used your ID when he was arrested, or the DA mailed a "Notice to Appear" to a bad address.  Either way, the judge issued a bench warrant when you failed to appear.  Now you're a fugitive.  You can be arrested at your home, your workplace, or wherever the police happen to find you.

That's what we want to avoid.

To clear this warrant, your case must be added onto the court's calendar as soon as possible.  Different courts have different procedures for requesting calendar add-ons.  It's helpful to have a local attorney who understands the quickest, easiest way to get your case scheduled without unnecessary delays.

Once your case has been added onto the court's calendar, you or your attorney must appear before a judge to request that the warrant be "recalled".  In most misdemeanor cases, an attorney (like myself) can do all this without you being personally present.  I can save you the expense of traveling all the way back to California for a no-fun day in court.  Boarding an airplane with a revoked driver's license and an active warrant is another adventure you don't need.  Let me take care of your old California warrant and save yourself the trip.

Often, the judge will be unhappy that you've previously failed to appear for a scheduled hearing.  It costs the county time and money to issue warrants when defendants fail to appear.  The judge may require you to reimburse the county for those expenses.  He or she might also impose bail if you were previously free on your "own recognizance" ("O.R.").

When you (or your attorney) is standing before the judge and asking to recall your warrant, the judge must determine whether or not you should be considered a "flight risk".  If a judge decides that you are likely to disappear again, then your bail could be set very high.  To avoid this, it's important to have your warrant addressed as quickly as possible after it's issued.  If you have an outstanding warrant for 10 years before you make any effort to address it, the judge will not sympathize with you.  If, on the other hand, you show up in court very soon after learning about your warrant, the judge might be willing to show some lenience.

Retaining a private attorney to address your old warrant will also show the judge that you take the matter seriously and that you are not a flight risk.  People don't hire lawyers when they're planning to disappear.

As mentioned above, your warrant will not simply go away by ignoring it.  The statute of limitations does not apply if you have an outstanding warrant.  The "statute of limitations" ("SoL" for short), refers to the time between the commission of the crime and the filing of charges.  It does NOT refer to the time between the commission of the crime and your arrest / appearance in court.  If the DA has filed charges against you in a timely manner but you are not captured for several years, you will not be able to claim the protections of the SoL.  You might have other defenses, but the SoL is irrelevant in this situation.

If you or a loved one has an outstanding arrest warrant in California, call us for a free consultation.  (714) 449 3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Lawyer