Recent Blog Posts

Discovery in Restraining Order Cases

David D. Diamond — Wed, 08 Feb 2012 00:29:00 GMT

A major question in restraining order cases is whether or not discovery is permitted. 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

Mutual Restraining Orders

Diamond & Associates — Fri, 23 Dec 2011 16:41:00 GMT

When you appear for a domestic violence restraining order, the Judge can grant mutual restraining orders on a very limited basis. Family Law Code section 6305 states that, "the court may not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320 (a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense." What this basically means is that courts can rarely order mutual orders unless there is a clear factual finding that BOTH parties were primary aggressors.

Continuances in TRO Hearings

Diamond & Associates — Fri, 23 Dec 2011 16:34:00 GMT

Does the Respondent Have A Right to a Continuance?

Yes.  When the respondent appears to defend a domestic violence restraining order,

he has an automatic right to continue the matter.  He can ask te Judge for

a continuance if he  was not served with the ex parte notice.   Family Law Code

§243 (d) states that "the respondent is entitled, as a matter of course, to one

continuance for a reasonable period, to respond to the petition for

orders."   What this bascially means is that if someone gets a TRO,

without telling you they were going to court, you can appear at the hearing date

and ask to continue the matter.  Most respondents use this time to hire an attorney

or better prepare their case.  Should you need assistance with your case,

please visit our website at www.california-restrainingorder.com

How to file an answer if served with a TRO

Diamond & Associates — Fri, 09 Dec 2011 17:52:00 GMT

If you are served with a temporary restraining order, you must file an answer (response) with the court. The following provides links to said forms. However, it is also important to file your own declaration, which atttorney David D. Diamond can help you prepare.

Domestic Violence Answer

CH Answer

Elder Abuse Answer

Workplace Violence Answer

Types of Restraining Orders

Diamond & Associates — Fri, 09 Dec 2011 17:44:00 GMT

When law enforcement respond to a domestic violence call, they can ask a bench offcier for an EPO. This stands for emergency protective order. It is issued by a law enforcement officer with the permission of a Judge or Commissioner. It is done at the scene of the incident.

A Civil Harassment restraining order is issued when a person has suffered harassment by any of the following means: unlawful violence, a credible threat of violence or 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 is typical for neighbors, workers, friends, and other individuals that do not have a dating relationship or a relationship that is defined by domestic violence orders. The burden of proof os clear and convincing evidence, greater than that for DV cases.

A Domestic Violence Restraining Order is issued to prevent acts of abuse by a batterer which can be defined as follows: intentional or reckless attempts to cause bodily injury, sexual assault, placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another or engaging in any behavior that has been or could be enjoined such as molesting, attacking, striking, stalking, threatening, battering, harassing, telephoning, destroying personal property, contacting the other by mail or otherwise, disturbing the peace of the other party.

An Elder Abuse Restraining Order is issued to protect an older person when there is a threat of harm or wrongdoing. If you are 65 or older, or you are between 18 and 64 and have certain disabilities, and if you are a victim of any of the following: physical or financial abuse, neglect, abandonment or treatment that has physically or mentally hurt you, you can seek an order.

A Workplace Violence Restraining Order is issued by a court when an employee has suffered unlawful violence or a credible threat of violence from an individual that can reasonably be construed to be carried out or to have been carried out at the workplace. This individual may seek a temporary restraining order and an injunction on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.

What is Harassment?

Diamond & Associates — Fri, 11 Nov 2011 22:37:00 GMT

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.

Who Can Seek a Restraining Order?

Diamond & Associates — Fri, 11 Nov 2011 22:26:00 GMT

Who May Seek Protection Under the Civil Harassment Restraining Order Laws

Any person who believes that they have suffered harassment may seek a TRO (temporary restraining order)

and an injunction prohibiting harassment pursuant to CCP 527.6. The phrase "person" is limited to natural persons and does not include entities such as corporations or associations. If you believe you haved been a victim of civil harassment, you are advised to go to your local branch courthouse and seek protection. If you require additional information, please visit our website at www.California-RestrainingOrder.com

Welcome to our California Restraining Orders Web Site and Law Blog

David D.Diamond — Thu, 03 Nov 2011 17:30:00 GMT

Welcome to our California restraining orders web site and law blog! We have an RSS feed available for you here. Please add our feed to your reader to stay updated on the latest important information regarding restraining orders.