Harvard Law School
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association .
Licensed to practice in California, Maryland, Washington D.C., & Georgia
Here are a few tips on harassment restraining orders. Judges make these orders under the Civil Harassment Act. It's a two step process. First you (the "petitioner") get a temporary restraining order (referred to as a "TRO"), which usually lasts three weeks, then you get a injunction, which can last three years.
There is a package of mandatory forms you can get from the clerk's office at the courthouse or on line at the San Diego Superior Court web site. The forms include your application for the TRO and the injunction, and the form for the TRO. The forms supposedly simplify the statutory language, which is questionable.
TROs are typically issued without notice, or "ex parte," because the petitioner alleges the bad guy (the "respondent") will do something violent if he knows what the petitioner is up to. The petitioner files the completed forms at the clerk's office. If violence is involved, there's no filing fee.
Call first and ask when ex parte harassment cases are heard, and go to the clerk's office at least an hour beforehand. The clerk will open a file with your papers and send it to the courtroom where harassment cases are being heard. You go the same courtroom and wait until the file shows up.
Some judges will come out, sit on their benches, and ask you questions. Others will just read your papers in their offices (called "chambers"). The judge or the bailiff will let you know whether or not the judge decided to issue the Temporary Restraining Order. The judge will also set a time and date within three weeks for the hearing.
If the judge issues the TRO, they'll give it to you along with a copy of your papers, and you have to serve them on the respondent before the hearing. If the judge didn't, you still have to serve your papers before the hearing. The papers tell the respondent to file a response before the hearing and to attend the hearing.
Remember you can't serve the papers. You have to get a friend, a registered process server, or a sheriff to do it. Once the restraining order and your papers are served, the respondent can be arrested if he violates the TRO. It's good idea to keep the TRO with you at all times to show to the police if necessary. Of course, if the judge didn't issue the TRO, nothing else happens until the hearing.
At the hearing you'll first be sworn to tell the truth. The the judge will ask you to explain why you want the injunction. The judge and your attorney (if you have one) will ask you questions. When you're finished, the respondent or his attorney (if he has one) can ask you questions. Then the respondent gets to tell his side of the story, followed by your questions.
If you've proved the respondent harassed you, the judge will issue the injunction. The terms of the injunction usually mirror what you asked for in your application and the terms of the temporary resraining order (if one was issued). The most important orders in the TRO or the injunction are called "stay way orders" and "no contact" orders.
Usually the respondent must stay at least 300 feet away from you, your home, your place of work, and your car, and must not telephone you, email you, or write to you. You are also allowed to record any calls you might receive from the respondent, to prove he's violated the no contact orders.
Now, what is harassment? The definition is long and complicated. For these purposes, it's enough to say that it's an act or threat of violence or a recent course of contact that alarms and annoys you and has no legitimate purpose. If it's a course of conduct, it also must also be something that would cause a reasonable person substantial emotional distress and actually cause you substantial emotional distress. Stalking is included.
When your papers allege an act or threat of violence, judges almost always issue a TRO. They're afraid if they don't that someone will be seriously injured. If you prove an act or threat of violence at the hearing, judges again will almost always issue an injunction. However, the judge can't unless you've proved it by "clear and convincing evidence."
When your papers allege a course of conduct, the outcome of the hearing is not so predictable. If it's seriously obnoxious and would obviously cause great emotional distress to anyone, chances are you'll get your injunction, but again you'll need clear and convincing evidence.
What isn't harassment? As long as there's no act or threat of violence, repeated and heated arguments with a landlord over late rent are not harassment. Neither are repeated and heated arguments with a roommate, you next door neighbor, or your boss.
The party who prevails at the hearing may be awarded attorney fees and costs by the judge. That's a good reason not to file a frivolous harassment restraining order petition. Another one is the long term damage it can do your relationship with the respondent and to the respondent himself. For example, government security clearances may be unavailable to a respondent against whom a Civil Harassment Injunction has been issued, threatening the person's livelihood.
The Civil Harassment Act is only for people who are unrelated to each other, who have no romantic involvement with each other, and who are not married to each other or divorced. People who are related to each other, who are romantically involved, or who are married or divorced can get TROs and injunctions under a companion law called the Domestic Violence Prevention Act , discussed in another article on this site under Family law.
Stanley D. Prowse is a Civil Litigation Attorney and trial lawyer specializing in civil litigation cases and hassment restraining orders in the greater San Diego area.