Civil Harassment Restraining Orders

Lounsbery Law Office, PC successfully handles civil harassment restraining orders in all courthouses throughout San Diego County. Below we have summarized for you the law and procedures involved in civil restraining orders. If you have any questions not answered here, please do not hesitate to contact us. You can also read about domestic violence restraining orders.

What is the purpose of a civil harassment restraining order?

A civil harassment restraining order is intended to prevent harassment of an individual by ordering the wrongdoer to have no contact with the victim of the harassment.

What qualifies as “harassment”?

The term “harassment” for purposes of a civil restraining order is defined in California Code of Civil Procedure (CCP) § 527.6(b)(3) as any of the following:

  1. Unlawful violence,
  2. A credible threat of violence, or
  3. 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.

Let’s look at each of the three types of “harassment” more in depth.

Unlawful Violence

“Unlawful violence” is defined in CCP § 527.6(b)(7) as 1) assault, b) battery, or c) stalking as defined in Penal Code § 646.9(a). That section defines stalking as: 1) willfully, maliciously, and repeatedly following or willfully and maliciously harassing another person, AND 2) making a credible threat against that person, AND 3) doing so with the intent to place that person in reasonable fear for his safety or the safety of his immediate family.

“Unlawful violence” does not include lawful acts of self-defense or defense of others.

Credible Threat of Violence

The phrase “credible threat of violence” is defined in CCP § 527.6(b)(2) as a knowing and willful statement or course of conduct that would place a reasonable person in fear for his safety or the safety of his immediate family but that serves no legitimate purpose.

Course of Conduct

The phrase “course of conduct” is defined in CCP § 527.6(b)(1) as a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” This includes acts such as:

  • Following someone
  • Stalking someone
  • Making harassing phone calls to someone
  • Sending harassing correspondence to someone by any means, including, mail, fax, e-mail, text, etc.

Constitutionally protected activity is not included within the meaning of “course of conduct.”

CCP § 527.6(b)(3) clarifies that 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.”

What is the process for seeking a civil restraining order?

Someone seeking a civil restraining order (called the petitioner) must obtain the proper court documents, fill them out, and file them in court. The paperwork must include the petitioner’s complaints and factual allegations in a declaration under penalty of perjury. The paperwork must also describe the people requested to be protected by court’s order and a description of the person intended to be restrained by the court’s order (called the respondent).

The petition for a temporary restraining order is normally filed first thing in the morning or first thing in the afternoon (1:30 p.m.) because the judge must normally either grant or deny the petition the same day the petition is filed. See CCP § 527.6(e).

The person seeking the restraining order will first seek a “Temporary Restraining Order” or a TRO.

What is a Temporary Restraining Order?

A temporary restraining order is one which a judge makes on an emergency or ex parte basis. “Ex parte” means without a party, or that one party seeks relief from the court without the other party’s being present to respond to the allegations.

A temporary restraining order may be issued with or without notice to the respondent, based on a declaration that shows reasonable proof of harassment of the petitioner by the respondent, and that great or irreparable harm would result to the petitioner. See CCP § 527.6(d).

What will the judge order in a Temporary Restraining Order?

Per CCP § 527.(b)(6), a TRO may restrain the respondent from doing any of the following against or toward the petitioner:

  • Harassing
  • Intimidating
  • Molesting
  • Attacking
  • Striking
  • Stalking
  • Threatening
  • Sexually assaulting
  • Battering
  • Abusing
  • Telephoning
  • Making annoying telephone calls
  • Destroying personal property
  • Contacting either directly or indirectly (including by mail, e-mail, phone, text or a third party)
  • Disturbing the peace of the petitioner
  • Coming within a specified distance (often 100 yards) of the petitioner
  • Enjoining the respondent from any specified behavior that the court determines is necessary to effectuate the above orders.

How long does the Temporary Restraining Order last?

A TRO issued by a judge will usually last no longer than 21 days. See CCP § 527.6(g).

How do I have the Temporary Restraining Order and/or Notice of Restraining Order Hearing served on the Respondent?

Pursuant to CCP § 527.6(m), the respondent must be personally served with 1) a copy of the petition, 2) the temporary restraining order (if any), and 3) notice of hearing of the petition. They must be served at least five days before hearing. The petitioner may not be the person who serves the respondent. The server must be an individual 18 years old or older who is not a party to the case.

I’ve been served with a Temporary Restraining Order and/or Notice of a Restraining Order hearing. How do I respond?

The way in which you respond to the TRO is extremely important. It can make or break your case. The timing in which you respond can also have a significant impact on winning or losing.

You may file a response that explains, excuses, justifies, or denies the allegations raised by the petitioner. See CCP § 527.6

If you’ve been served with a Temporary Restraining Order, you would be smart to choose your words wisely when writing a response. In fact, it may be better not to file any declaration at all. You should consult an attorney about the strongest and smartest strategy to use in your defense.

What happens once a TRO has been granted?

When a judge makes a decision to grant or deny a petition for a temporary restraining order, he will also schedule a hearing (or trial) for a permanent restraining order. The hearing is commonly scheduled 21 days after the petition is filed.

What happens on the hearing for a permanent restraining order?

At the hearing, the parties will have the opportunity to present evidence and arguments as to why the permanent restraining order should or should not be granted. You can have witnesses testify at the hearing, present documents, letters, photographs, video recordings, etc. See CCP § 527.6(i).

The respondent may show up at the hearing without being ready to proceed. He may decide that he does not want to proceed with the hearing at that time, and request a continuance of the hearing. The respondent is entitled to one continuance of the hearing. He may choose to do so for any number of reasons. He may not be ready because he has not yet filed a response. Or perhaps he would like to hire a lawyer before proceeding with the hearing. Or perhaps he would like more time to gather more evidence. Whatever the reason, the petitioner cannot prevent the respondent from continuing the hearing if the respondent makes the request.

If the respondent has the hearing continued to another date, the temporary restraining order will remain in place until the date of the hearing.

It is often beneficial to the respondent to have the hearing continued to another date because the more time that passes without contact between the petitioner and respondent, the less need there may be for a restraining order to be issued.

If the petitioner does not show up at the hearing, the restraining order will be dismissed.

How do I win the permanent restraining order hearing?

The petitioner has the burden of proving the need for a restraining order “by clear and convincing evidence.” This is a high burden and not easily met. The petitioner would be wise to consult an attorney about what type of evidence to present at the hearing. The details and complexities of the factual allegations can make a big difference in determining who wins and loses.

Likewise, the respondent would also do well to consult a lawyer about how to proceed with his defense. Legal strategy is often the most important factor that determines whether or not the respondent will win his case.

How long does a permanent restraining order last?

At the hearing, if the judge decides a restraining order is appropriate, he can issue a so-called “permanent” restraining order for up to three years. See CCP § 527.6(j)(1).

If the permanent restraining order does not state its expiration date on its face, then the order is to last for three years from the date of issuance. See CCP § 527.6(j)(2).

The permanent restraining order is subject to modification or termination by further court order. The parties may file a written stipulation that they both agree to modify or terminate the permanent restraining order. Or either party may file a motion with the court requesting modification or termination. If the respondent files a motion to modify or terminate the restraining order, he must personally serve the motion on the protected party (petitioner) before the hearing. See CCP § 527.6(j)(3).

May I renew or extend a permanent restraining order when the 3 years are almost up?

The permanent restraining order may be renewed or extended upon the request by either party for up to another three years. The request for renewal must be brought at any time within the three months before the expiration of the order. The renewal may be granted by the judge even without any proof of any further harassment since the issuance of the original order. See CCP § 527.6(j)(1).

Can I hire a lawyer to represent me at the hearing?

Either party may hire an attorney to represent them at the hearing. See CCP § 527.6(k). The winning party may ask the court to order the other party to pay for his attorney fees and costs. See CCP § 527.6(r).

At Lounsbery Law Office, PC, we have the knowledge and ability to fight your case and win. We have represented countless clients in civil harassment restraining order cases throughout San Diego County and we would be honored to represent you in yours. To speak with attorney Tate R. Lounsbery right away, call us at 619-792-1451 or email us.