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Restraining Order Basics
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Summary. The restraining order procedure is a quasi-criminal judicial procedure in which a California Court determines if a person will be ordered to restrain their behavior relative to someone else. Usually this takes the form of an order to keep away from another person at home, at work, at school as well as limitations on other types of contacts. The standard for granting a restraining order is whether the person for whom the restraint is sought has committed “unlawful violence, [made] a credible threat of violence, or [engaged in] 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 procedure for seeking a restraining order is: (a) complete the papers [; ; ; ; ] and make three copies; (b) go to the Court and file the papers with the Clerk; (c) get a person who is not a party to the case to give the papers to the person you seek the order against; (d) get the person who gave the papers to complete a Proof of Service [form ] and file that more than five days before the hearing; (e) attend the hearing with your witnesses and document evidence to give testimony. Note, if this is between household members, likes spouses, you need to use the forms that start with the letters DV, for domestic violence.
Overview
In California a person who has been the victim of violence, threats, or seriously alarming conduct that has no legitimate purpose, the victim may be able to obtain a Court order that the perpetrator stay away from the victim, as well as not communicate with the victim.
There are two types of such restraining orders: (1) Domestic Violence; and (2) Civil Harassment. This blog primarily addresses the Civil Harassment type, but, the same general information may apply to the Domestic Violence type.
The basic procedure is as follows
(a) complete the papers [; ; ; ; ] and make three copies;
(b) go to the Court and file the papers with the Clerk;
(c) get a person who is not a party to the case to give the papers to the person you seek the order against - you also need to deliver to that person two additional papers: (i) response to request for restraining order on form ; and (ii) how do I respond to a request for a civil harassment restraining order ;
(d) get the person who gave the papers to complete a Proof of Service [form ] and file that more than five days before the hearing;
(e) attend the hearing with your witnesses and document evidence to give testimony.
Procedure for Attending the Hearing
In California, generally, cases are called on what is called a “calendar call,” system. Civil harassment and domestic violence restraining order cases are heard in the same court that hears criminal matters. Generally, a list of matters being called at the time your hearing is scheduled for is posted outside the Courtroom slightly before the time for your hearing. Each matter is on a numbered line. Write down and remember the line number that your matter is on.
You will need to check in with the Courtroom clerk. The Courtroom clerk is different than the clerk’s office. The Courtroom clerk is a person who works in the courtroom and serves and the administrative assistant for the judge. The Clerk’s office is a room where Court employees review papers for filing and is different than the courtroom clerk.
When the judge enters the room, stand up and wait for the judge to tell you to sit down. Make sure to turn off your mobile telephone or at least silence the ringer.
The judge will call the matters and request appearances. The judge may group the matters by those that appear to be uncontested and or stipulated to, meaning the judge does not expect much dispute over those items. The judge also may call matters where no appearances are made. Then, the judge will call the matters that may take more time.
It is very common for matters to be re-calendared or postponed at calendar call. This can happen several times.
Procedure for Requesting a Civil Harassment Restraining Order
Complete the required forms
1. Request for Civil Harassment Restraining Orders ()
Use this form to tell the judge:
Note: If the other person has been violent towards you, stalked you, or threatened violence, you will not have to pay the court filing fee. To make this request, check item 13a on form CH-100.
2. Temporary Restraining Order ()
You need this form if you are asking for protection right away (if you checked form CH-100, item 7). The court will complete most of this form. You only need to complete items 1, 2, and 3.
3. Notice of Court Hearing ()
The court will complete most of this form. You only need to complete items 1 and 2.
4. Civil Case Cover Sheet ()
This form tells the court basic information about the type of case you are filing.
5. Confidential CLETS Information ()
The information on this form will help police enforce your restraining order. The court will not use the information on this form and the person you want a restraining order against will not get a copy. Some information is mandatory and is marked with an asterisk (*). You may not have all the other information about the restrained person. Fill in as much as you can.
6. Serve blank Forms and
(i) response to request for restraining order on form ; and (ii) how do I respond to a request for a civil harassment restraining order
Responding to a Restraining Order
If you are served restraining order papers, you should have been served (i) response to request for restraining order on form ; and (ii) how do I respond to a request for a civil harassment restraining order . The latter, provides instructions for completing the former.
The best response to many restraining order applications is that the assertions in those applications may often be inadmissible for violating numerous rules of evidence. The rules of evidence and their application is extremely complicated, so you are best served by hiring an attorney. However, if you are in an emergency and cannot afford an attorney, the following may be useful. In your response, you can make evidentiary objections to the testimony in the restraining order application, as follows.
If the allegation is stated in terms of an attack on character, using words like “aggressive,” “hostile,” “threatening,” those allegations may be improper character evidence. Under Evidence Code section 1101 evidence of someone’s [alleged] character is inadmissible as proof of conduct on a specific occasion.
If the allegation states what someone else [thinks they] heard or saw or makes some other assertion that the petitioner did not actually perceive, then those allegations are inadmissible as lacking personal knowledge under Evidence Code section 702.
When the application refers to what someone said, other than the applicant, that is “hearsay,” meaning a statement that was made out of court, not under oath to tell the truth and offered in the application for the truth of the matter asserted.
The general rule is that hearsay is inadmissible. Evidence Code section 1400. Be careful, there are many exceptions to the rule excluding hearsay. For example statements made by the opposing party are statements against interest, and admissible. Statements that are made spontaneously and to describe an event, close to the time of the event may be admissible. Statements that are not offered for the truth of the matter, but to prove the effect on the listener may be admissible.
Do not worry if you do not understand hearsay. The point is, if someone is testifying as to what someone else said, and you don’t like that testimony, hearsay may be a valid admission.
If the application refers to photographs, audio or video recordings, or other documents, but, the application does not say how the applicant knows those are authentic, meaning how the applicant knows those documents pertained to the events at issue, including who created the document, where it was stored in the interim, what it depicts, and the like, then the document may be inadmissible as both lacking foundation and not authenticated, under Evidence Code sections 702 and 1400. Additionally, frequently documents, photos and the like are incomplete and therefore misleading, and thus possibly inadmissible as incomplete under Evidence Code section 356.
If the application discusses events that are irrelevant to the matter, like the color of someone’s house, the clothes they wear, and incidents that occurred with other people, that testimony may be inadmissible as irrelevant. Evidence code section 210.
Lastly, if the application discusses events, specifically legal actions pertaining to a lawsuit or another restraining order that conduct is privileged under the litigation privilege at Code of Civil Procedure section 47(d).
This is exacting work. However, careful analysis of the allegations usually can result in valid objections to a large number of the statements made in allegations.
Websites to Learn More about Restraining Orders
[Info on domestic violence restraining orders]
[how to request a civil harassment restraining order]
[how to respond to a civil harassment restraining order]
You may also want to read the California Court website for resources for victims of criminal violence
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