San Diego Restraining Orders

Restraining orders are a mixture of family law, civil law, and criminal law.  What you need is a true trial attorney to represent your goals.

Attorney Mark Deniz has conducted in sum thousands of hearings, motions, and jury trials that can benefit you in your matter.   Our office focuses in the San Diego County Superior Courts.  Whether your matter is in Vista or downtown we have been there and can navigate you through the process successfully.

California Law permits judges to retrain conduct through the use of injunctions called San Diego Restraining Orders.  There are numerous types available.  However, our firm focuses on the two most primary types of motions which is the Domestic Violence Restraining Order and the Civil Harassment Restraining Order.  Both are very different and apply to different situations.

  • Domestic Violence Restraining Order. Protects an individual from abuse by someone that the individual has a domestic relationship with, such as a spouse, parent, child, family member, or roommate.
  • Civil Harassment Restraining Order. Protects an individual from a person who is not a family member or does not live with the individual.

Domestic Violence Restraining Order

The first type is the domestic violence restraining order, sometimes called a DVRO. These orders are obtained by filing a petition with the local Court alleging that someone within the "domestic unit" has used threats of violence, is stalking or has inflicted injury upon the requesting party.

These TRO's are generally the easiest to obtain if indeed there is evidence of one of the qualifying criteria. If an arrest took place prior to the request for the order of protection then it is almost certain that a Judge will issue the temporary order and set a hearing date for the issuance of a permanent restraining order, usually with two weeks of the granting of the initial DVRO.  It is key that during this time to ensure that service has been proper.

The next hearing is to determine whether there will be a permanent restraining order, which will usually last three years.   At this hearing, the  the Judge must find that evidence establishes by a preponderance of facts that one of the elements is satisfied. The Domestic Violence Restraining Order will appear on all public record data bases (CLETS) and will often be viewed by potential employers and others when seeking jobs, licenses, loans, etc. Attorneys can often defend requests for DVRO's when they are being used inappropriately for reasons such as leverage in upcoming divorce proceedings, child custody hearings, and for revenge for infidelity and other reasons.  It is key to have evidence to show the petitioners anger and abuse of this process.

The Domestic Violence Restraining Order will contain a variety of different orders such as a stay away of often at least 100 yards from the person protected. A "kick out" order causing the person to have to move from any family residence; stay away orders for children and relatives; orders to not contact by phone, e-mail or any other written or electronic communication; orders not to intimidate or persuade not to come to Court or testify against the other party. Worst of all, the judge can order a 52 week batterers treatment program.

Violation of DVRO or stay away orders can be prosecuted under Penal Code 136.1 and 136.2. The charges could be brought either as a felony or a misdemeanor and can carry jail time or imprisonment in the CDC if convicted. Criminal Charges can also be brought under Penal Code 166 as contempt of a valid Court Order if the defendant knew of the order, failed to obey the order if having the ability to do so, and the failure was willful. Criminal contempt charges are often treated very harshly by the Court. As a former San Diego prosecutor I cannot stress they will prosecute these cases.  It is key you hire an experienced attorney like Mark Deniz to navigate you through this process.

One recent success was my client was fighting a restraining order.  The petitioner said she was abusive and violent to him.  He mentioned an instance when he called the police out to her.  He tried to show a number of phone calls and text messages.  In the end, we established the petitioner did not meet his burden and the order was denied.

Civil Harassment Restraining Order

While family members can seek a domestic violence restraining order, people with different types of relationships may also seek protection from the court. Neighbors, friends, co-workers, are just a few examples of individuals that have the legal right to seek and obtain a civil harassment restraining order.

If someone alleges harassment, they may seek a civil harassment protective order protective order which can be granted based upon one of the following.

  • Unlawful violence
  • A credible threat of violence
  • 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. This rule allows for harassment based upon acts that may not be necessarily considered an act of violence, such as emails, texts, phone calls or stalking.

The ruling law with San Diego Civil harassment orders is  California Code of Civil Procedure § 527.6, which explains that the course of alleged conduct must cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the victim. If you have been served with a restraining order request and your actions do not fit within the above mentioned categories, it is vital to contact our office to begin your defense.  If you are seeking to get a San Diego Civil Harassment order get it done right by a professional who knows that the court wants and needs to hear.

In addition, the civil harassment restraining order can include restraints on personal conduct by the harasser, order him or her to stay away from the victim's home/work and/or children's school, and other miscellaneous orders. There is no requirement that there be a relationship between the victim and a harasser in order to obtain the protective order. Again, there must be recent acts of harassment, which is a determination made by the court.

A civil harassment restraining order is unlike a domestic violence TRO in that the relationship between the parties is more casual. This type of protective order is normally for neighbors, casual friends, and non-married parties. Civil Code of Procedure section 527.6 defines the rules and requirements for a civil harassment restraining order. The Petitioner must show that he or she has suffered harassment. Harassment is defined in detailed below.  Harassment can be unlawful violence, a credible threat of violence, or a knowing and willful course of conduct. This conduct must be such that a reasonable person would suffer substantial emotional distress, and must actually cause such substantial emotional distress. When you go to court for your hearing, you must show by " clear and convincing" evidence that unlawful harassment exists. This standard is greater than the preponderance of evidence standard at a domestic violence restraining order hearing. It lasts three (3) years and can be renewed without a further showing of harassment.

What is the Definition of Harassment?

Harassment means unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously annoys, or harasses the person and serves no legitimate purpose. Please see CCP section 527.6 (b).

Unlawful violence is any battery, assault, or stalking, but it does not include lawful acts of self-defense or defense of others. CCP 527.6(b).

Credible Threats of Violence is a willful and knowing statement or course of conduct that would place a reasonable person in fear of his or safety, or the safety of his or her immediate family, and that serves no legitimate person. CCP 527.6 (b) (2). The intent requirement for a real threat is that the respondent/defendant intentionally or knowingly communicates the threat. It is not necessary that the defendant intends to, or is able to carry out the threat.

Course of Conduct is a pattern of conduct composed of a series of acts over a period of time, however short, showing a continuity of purpose.

One recent example of success was a neighbor of a barber shop was harassing the barber.  He had left nasty messages on the voicemail.  The restrained was walking by the business making obscene gestures through the window.  He also damaged property alongside the business and made veiled threats to the barber.  The motion was granted and my client now has the protection of the order.

DISCOVERY

I have heard it countless numbers of times from judges.  There needs to be independent evidence other than someones testimony otherwise it is a "he-said, she-said" situation.  What I see happens is the parties bring a mountain of photos, emails, screenshots of texts, etc.  They then want to heap it on the day of trial.  The other side wants a continuance and you have to show up in a  few weeks to court.  it can be frustrating.  

If you can you want to provide the evidence earlier.  If you want witnesses, they have to sign declarations under penalty of perjury.  You cannot say, "I have a lot of people who can testify".... if you have them bring them at the hearing.

So is discovery permitting in San Diego Restraining Order Cases?   A little known case answers that question. The simple answer is no. In Thomas v Quintero (126 Cal.App.4th 635), the court held that "there is no provision under section 527.6 allowing for discovery, and in any case, under the civil harassment scheme there is insufficient time in which to conduct discovery." Because the time gap between the issuance of a temporary restraining order and the hearing to determine if the TRO becomes permanent is 21-25 days, there is simply no time to conduct discovery

Restraining orders exist to protect those who are in need of court intervention. Our firm is experienced and knows how to assist you, whether you are seeking a TRO or need help defending against one.

Restraining Order Protection Levels

Each San Diego Restraining orders above can have one of the following three levels of protection:

  • Emergency Protective Order (EPO). An EPO is usually issued when a responding officer feels that there is imminent danger of domestic violence, child abuse, abduction or elder abuse. An EPO is valid for five business days or seven calendar days from its issuance, whichever is earlier.  At this stage you usually do not have an attorney.
  • Temporary Restraining Order (TRO). TROs are usually valid for two to three weeks. Generally, a court will hold a hearing on whether to issue a Permanent Restraining Order (PRO) before the TRO expires.  It is key that both parties during this time are not contacting one another.  If you are seeking the order it will hurt your case to contact the other party.  If you are the respondent than it will be a crime if you violate the San Diego TRO.
  • Permanent Restraining Order (PRO). PROs may last up to three years and may be extended if the court finds that an extension is required. A hearing must be held to issue a PRO.  This is when you should have an attorney to obtain what you are seeking.

Violating a California Restraining Order

San Diego prosecutors are serious about restraining order enforcement.  Under California Penal Code Section 273.6, a prosecutor must prove the following in order to gain a conviction for violating a restraining order: (1) there was a legal protective order issued by a judge, (2) the defendant knew about the protective order, and (3) the defendant intentionally violated the order.

California Penalties for Violating a Restraining Order

Violations of protective orders are usually charged as misdemeanors. The prosecution can and will zealously prosecute these cases.  As a former prosecutor I can tell you the court does not like when someone violates a court order.  Penalties for violating protective orders under Section 273.6 include up to one year in county jail and a fine of up to $1,000. If convicted for a second offense, the violation may be charged as a misdemeanor or as a felony, which carries penalties ranging from probation and up to one year in county jail to three years in state prison and a maximum fine up to $10,000. The fines and penalties are more severe if it is the second conviction in less than one year. If a person suffered bodily injury as a result of the violation of a protective order, there is a statutory minimum of 30 days in jail.

Defenses for Violating a California Restraining Order

There are several defenses that can be asserted against charges of violating a restraining order:

  • Lack of Intent. If a person is aware of a protective order, but violates it without knowing, the defendant cannot be convicted of violating a protective order.
  • Lack of Knowledge. If a defendant does not know there is a protective order in place, he or she cannot be convicted of violating it.
  • False Accusation. A protected person can lie about a defendant trying to contact them or trying to come into contact with them. A protected person can also contact a defendant and arrange a meeting that would violate the protective order in order to "set up" the defendant.  There should be independent evidence that needs to be presented.  A "He said-She said" will not suffice.

If you are seeking a restraining order or need to defend yourself from one, call 858-429-9982 now to speak to an experienced attorney.

Common Questions about Restraining Orders

Will I know if a restraining order will be issued against me?

You will not know if a restraining order is issued against you. The initial restraining order can be issued ex-parte, meaning the person who claims that he or she is in fear of bodily harm can get an order against you without your having the right to be heard. You will not be officially notified of a restraining order until you are served. The court will not hold a 10-day hearing until it receives a return of service notifying that you have been made aware of the 10-day hearing. You cannot violate a restraining order if you have not been properly served.

Who can obtain a restraining order?

Anyone who claims to be in "imminent fear of bodily harm" can attempt to obtain a restraining order. A judge can issue a restraining order against anyone who qualifies as a family or household member. People are considered family or household members if they:

  • are or were married to one another,
  • are or were living together in the same household,
  • are or were related by blood or marriage,
  • have a child in common,
  • have been dating or engaged. The court looks at the following factors when qualifying this: length of relationship, type of relationship, frequency of interaction during relationship, and time passed since termination of relationship.

If the person who got a restraining order against you does not fall into one of the above categories, the restraining order is not legal. This is an issue to be brought up at the 10-day hearing.

What happens if I get served?

If you are served with a restraining order, it means that someone has gone to court and told the judge he or she is in fear of you. This initial order is valid only until the hearing. The hearing is usually 10 days after the ex parte hearing; however, if you have not been served, the court will postpone the hearing until you have been served.

Once you are served, you must appear at court on the assigned date and time. At the hearing, you will have an opportunity to tell the judge why the restraining order should not be issued. You can cross-examine the plaintiff regarding his or her claims against you. However, you should be careful that you do not incriminate yourself at the hearing (for example, do not provide information about hitting, punching, slapping, threatening, or doing anything else that would have placed the plaintiff in fear of bodily harm). This is especially important if you have criminal charges pending against you.

You have a right to a lawyer at this hearing, and you may also bring witnesses. You or your lawyer can cross-examine the person who is seeking the restraining order against you to show that the person is not in fear of you. Your lawyer can speak on your behalf.

In the interim, abide by the restraining order. Even if the plaintiff claims he or she does not plan to go forward with the order, it's your record and your future at stake.

Some things to think about at the hearing

  • Be careful about what you say. You are under oath and being recorded, so any statement you make can be used against you at a future court date.
  • Be on your best behavior.
  • Dress appropriately for court.
  • Avoid all contact with the plaintiff while you are in court. Stay away and try to prevent a confrontation.

Will a restraining order show up on my criminal record?

A restraining order will appear on your criminal record. Although a restraining order is a civil order, whenever someone runs your record for probation, employment, or immigration purposes, it will show that someone had or has a restraining order against you.

Abiding by the restraining order. While you await your hearing, abide by the restraining order. All it takes is one phone call, one drive by, or one text message to be charged with a violation. If you get arrested for a violation, the police will hold you until the next court date. However, simply having a restraining order issued against you should not affect your employment, probation, or immigration status.

There is NO doubt this can be an emotional event for both parties.  You want to accomplish your goals in the process and move on with your life.  Have an experienced former prosecutor help navigate you through the process.

Contact the Law Offices of Mark Deniz for a free case evaluation at 858-429-9982.