Have you been served with a Civil Restraining Order or a Domestic Violence Restraining Order?
Civil Harassment Restraining Order:
Per Code of Civil Procedure section 527.6 civil harassment is: Unlawful violence, like assault or battery or stalking, OR A credible (real) threat of violence, AND The violence or threats seriously scare, annoy, or harass someone and there is no valid reason for it. “Credible threat of violence” means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family. A “credible threat of violence” may include following or stalking someone, making harassing calls, or sending harassing messages, by phone, mail, or e-mail, over a period of time (even if it is a short time). Even actions that occurred in the past, when looked at together with subsequent actions, may be connected to show the implication of a threat.
Domestic Violence Restraining Order:
Family Code Section 6220 sets forth the law for restraining orders between people who have been in an intimate relationship and is intended to protect victims of domestic violence. This type of restraining order applies when there is abuse and a close relationship between the accused and the allegedly abused, such as:
Married or registered domestic partners
Divorced or separated
Dating or used to date
Living together or used to live together
Parents together of a child
Closely related (parent, child, brother, sister, grandmother, grandfather, in-law)
When the court decides whether to issue a DVRO (Domestic Violence Restraining Order), they look at whether there has been "Abuse", which Family Code Section 6203 defines as:
Intentionally or recklessly to cause or attempt to cause bodily injury
To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another
Molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including but not limited to making annoying telephone calls (see PC 653(m)), destroying personal property, unwanted contact, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party.
Consequences of a Restraining Order:
There are significant consequences to being subject to a restraining order, including:
You must give up your firearms (See DV-800).
You are entered in the CLETS system (California Law Enforcement Telecommunications System). This information is given to law enforcement and will show up on a background check. This may affect your work and dating prospects.
Restrictions on where you can go. If you fail to abide by them, you could be charged with Penal Code 273.6, a misdemeanor. (See PC 273.6)
Your immigration status may be affected (please consult with your immigration attorney).
You may be required to move out of your home.
You may be required to give up property or access to online accounts.
You may be required to pay for a debt or insurance.
The Petitioner may gain the right to record communications with you.
You may be liable for attorneys fees.
Defending Restraining Orders:
When your job, your guns, or your freedom of movement is at stake, you need experienced counsel to defend against the issuance of a restraining order. You may have limited time to file a timely answer or motion. You may unintentionally waive certain jurisdictional arguments by appearing in your case without consulting an attorney. Give yourself the best chance at reducing the impact of your case on your life by contacting an attorney now.
ATTORNEY ISAAC SAFIER, ESQ.
Attorney Isaac Safier, Esq. has extensive experience with this area of law. Restraining orders are notoriously hard to defend because the legal burden is low and there is no right to a Jury.
When you need to fight a restraining order it is important to have experienced counsel on your side from the start of your case.
Case Result Highlights:
Spring 2016: I represented a Petitioner seeking a civil harassment restraining order. The case was settled for an undisclosed and confidential sum for my client.
Summer 2016: I represented a Respondent in a Domestic Violence restraining order in Marin. The case was settled with a non-CLETS agreement and the case remained sealed.
Summer 2016: I represented a Respondent in a motion for attorneys fees after a restraining order case had resolved. The case was referred by another attorney who was aware of my experience in these matters. The attorneys fees request was denied and my client did not have pay anything to the other side.
Spring 2017: I represented a Respondent in a civil harassment case in San Francisco, filed by her angry neighbor. The case could not be settled so I litigated it in front of a judge in superior court. The Petitioner's case fell apart under the scrutiny of my cross examination. The case was dismissed and my client won.
Summer 2015: I represented a Respondent in a domestic violence restraining order case in San Francisco. My client's career was at stake and he was at risk of losing an important professional license by being in the CLETS system. I prevailed on a hotly contested motion to quash for lack of jurisdiction and the case was dismissed.
Summer 2017: I represented a Respondent in a domestic violence restraining order case in San Francisco. We were assigned our own courtroom for a long cause hearing and litigated for 2 days. I prevailed in excluding a domestic violence expert. The Petitioner's case was then dismissed and my client won.
Summer 2017: I represented a foreign Respondent in a domestic violence restraining order case in San Francisco. We settled the case and there was no permanent CLETS order to interfere with his employment or immigration process.
Summer 2017: I represented a CEO of a mid-sized company in a domestic violence restraining order case in Contra Costa county. His business licenses were at stake. After a hearing I was able to convince the judge to issue a limited order that that not interfere with the operation of his business or renewal of his licences.
Fall 2017: I represented a Respondent in a domestic violence restraining order case in San Francisco. We settled the case and there was no permanent CLETS order to interfere with his employment. The case was sealed to the public.
Fall 2017: I represented a Respondent in a civil harassment case in San Francisco. Petitioner withdrew her claim and paid my client an undisclosed confidential sum to settle the case. My client won and was paid.
Fall 2017: I represented a Respondent in a civil harassment case in San Francisco. We were able to reach an amicable settlement with the Petitioner and the case was dismissed.
Spring 2018: I represented a Petitioner in Alameda County. My client was accused of threatening physical harm to the Respondent and Respondent was harassing her by publishing this information to her workplace. By showing the contextual history between the parties I was able to obtain a permanent restraining order to protect my client and her family.
Spring 2018: I represented a Petitioner in San Francisco who had been taunted for years by online harassment, email bombing and cyber-bullying. We obtained a permanent order to protect him from further contact.
Summer 2018: I represented a Respondent in a civil harassment case in Alameda County. His employment and his licenses were at stake. After a 2-day trial we prevailed and the case was dismissed (my client won).
Summer 2018: I represented a Respondent in a DV restraining order in Alameda County. The case was dismissed and my client's rights were restored and his name was removed from the CLETS system.
Note: These cases reflect some of the cases I have handled and results may vary for individual cases.
COMMON QUESTIONS ABOUT CIVIL HARASSMENT RESTRAINING ORDERS:
1) DO I HAVE A CIVIL HARASSMENT RESTRAINING ORDER CASE OR A DOMESTIC VIOLENCE RESTRAINING ORDER CASE?
If the forms you received start with DV.. such as DV-100 or DV-109, you have a domestic violence restraining order. Civil harassment forms start with CH.. such as CH-100 or CH-109. The exception is that both types include a DV-800 regarding firearms.
2) HOW MANY CONTINUANCE CAN I GET TO RESPOND TO A CIVIL HARASSMENT RESTRAINING ORDER?
California Code, Code of Civil Procedure - CCP § 527.6 (o) The respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition.
After that, you need "good cause".
3) IF I FILED THE RESTRAINING ORDER BUT CAN'T SERVE THE RESPONDENT, HOW MANY CONTINUANCES CAN I GET TO FIND AND SERVE HIM?
California Code, Code of Civil Procedure - CCP § 527.6 (p)(1) Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause.
In other words, if you have a good reason that you couldn't find the respondent but have been trying, the Judge could give you multiple continuances so you can keep trying to serve him. I have gotten as many as 7.
4) CAN I SEE INFORMATION ABOUT RESTRAINING ORDERS ONLINE?
San Francisco: You must go to the "public viewing room" in the back of the clerk's office (room 103) and use one of their special computers to look at your case. They also have paper files but they are usually in storage or in transit. If you want to print something, have small change or cash available.
5) CAN I HAVE MY RESTRAINING ORDER CASE SEALED?
Yes, but generally you need the other side to agree and the Judge to sign the order (it is up to the Judge's discretion). There needs to be a good reason for sealing.
6) WHO IS THE PETITIONER?
“Petitioner” means the person to be protected by the temporary restraining order and order after hearing and, if the court grants the petition, the protected person.
7) WHO IS THE RESPONDENT?
“Respondent” means the person against whom the temporary restraining order and order after hearing are sought and, if the petition is granted, the restrained person.
8) WHAT IS THE DIFFERENCE BETWEEN A TEMPORARY RESTRAINING ORDER AND A PERMANENT?
Temporary- Petitioner submits forms and gets a call that this is granted until the hearing date. If the hearing is postponed (continued) it can be reissued again and again until the hearing date.
Permanent- This is given after the hearing. It can be up to 5 years (usually 3 by default) but can be renewed for another 5 years.
9) CAN YOU MODIFIY OR TERMINATE A RESTRAINING ORDER EARLY?
Yes. California Code, Code of Civil Procedure - CCP § 527.6 (j)(1) In the discretion of the court, an order issued after notice and hearing under this section may have a duration of no more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.
In other words, you can agree to end it early or you can make a motion to the court for modification.
10) CAN YOU SERVE SOMEONE A RESTRAINING ORDER BY MAIL IF YOU CAN'T FIND THEM?
No! It must be personal service. I once had a Judge try to do this but when her clerk briefed it, she realized she was not allowed to authorized alternative (ie, mail) service. California Code, Code of Civil Procedure - CCP § 527.6 (m): "Upon the filing of a petition under this section, the respondent shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition."
11) CAN I BE RESTRAINED BECAUSE I CALLED THE POLICE OR CITY AGENCY SUCH AS THE PLANNING DEPT?
“Constitutionally protected activity is not included within the meaning of ‘course of conduct.’” See California Code of Civil Procedure § 526.7, subd. (b) (1). Thomas v. Quintero (2005) 126 Cal.App.4th 635, 663 [24 Cal.Rptr.3d 619, 638]. Among conduct that is protected free speech, is any, ‘act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Thomas v. Quintero (2005) 126 Cal.App.4th 635, 644–45 [24 Cal.Rptr.3d 619, 624]
12) CAN I BE RESTRAINED BECAUSE FOR WROTE A LETTER DEMANDING THAT SOMEONE STOP DOING SOMETHING, THREATENING LITIGATION OR ASKING FOR REIMBURSEMENT?
In Aronson v Kinsella, the court found that the applicability of litigation privilege to prelitigation statements does not carry requirement that a complaint be drafted or be in process of being drafted when statements are made. The privilege applies to “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 262 [68 Cal.Rptr.2d 305, 309–10]
13) WILL THE COURT ISSUE A RESTRAINING ORDER AFTER A SINGLE RANDOM INCIDENT?
In Russell v. Douvan, a civil harassment case in which an attorney was punched once by another attorney, the appellate court affirmed the “long-standing principle that a prohibitory injunction may not issue unless the court finds there is a threat of future harm”. Russell v. Douvan (2003) 112 Cal.App.4th 399, 402–403, 5 Cal.Rptr.3d 137. In other words, “an injunction is appropriate only when it appears from the evidence that the harassment is likely to recur in the future”. R.D. v. P.M. (2011) 202 Cal.App.4th 181, 189 [135 Cal.Rptr.3d 791, 798].
PLEASE NOTE: The information provided in these pages is not legal advice, and should not be relied on as such. The content on these pages is for informational purposes only, and is meant as a starting point on your search for answers to your legal questions. The law may have changed since this was published.