RESTRAINING ORDERS: THE SERIOUS TRUTH BEHIND THE LAW by Judge Herbert Dodell

This review of California Code of Civil Procedure Sections 527.6 and 527.8, which define civil harassment restraining orders, addresses the lack of due process in ex parte judgments, the lack of financial-need verification that encourages capricious filings, the lack of a mechanism to expunge any orders from public records, and the admission of hearsay evidence in Section 527.6 and Section 527.8 hearings. It specifically addresses work place violence and gun control issues and makes suggestions on how to deal with some of those issues and others.

Note: Although rape and domestic violence are enormous issues for the courts and many of the forms and procedures for obtaining a restraining order in those instances are similar, those cases are beyond the scope of civil-harassment restraining orders.

A restraining order is a court-imposed prior restraint, in which the government tells an individual he or she can be sent to jail for saying or doing the things the court has prohibited. In California, the ramifications of such an order are life altering, as it immediately goes into the California Law Enforcement Telecommunications System (CLETS) through the California Restraining and Protective Order System (CARPOS) where it remains for five years—even for a Temporary Restraining Order (TRO), and even if the permanent injunction is denied and the entire record moved to inactive files.  It cannot be expunged.

The party seeking a restraining order is the Petitioner and the party in opposition is the Respondent.

This online record of a person’s supposed untrustworthiness and instability can result in myriad inconveniences, from being held and questioned when re-entering the USA after a trip abroad, to coloring the officer’s attitude when stopped for a traffic violation. It inhibits the Respondent’s right to own or possess a firearm and even the right to acquire a firearm. Since it is part of an individual’s public record, it can even come up when applying for a job where prospective employers do a background check. For practical reasons employers are reluctant to hire someone who has been found to be unstable or a danger to others.

The Petition itself is heavily weighted toward the Petitioner and based entirely on their version of the facts. No corroborating evidence, witness statement, or even police report is required. Compounding the bias, the CH-100 or WV-100 Request for Civil Harassment Restraining Orders when a TRO is being sought is reviewed in chambers without notice to the Respondent unless an issue compels the judge to ask for clarification in open court. Even then, there is no opposition.

While CLETS policy is to remove the notice once the TRO or permanent Restraining Order injunction (RO) expires, as soon as an allegation becomes part of the public record, anyone can access it online. Deleting it from the web at that point is unfeasible.

The 1978 California legislature, prompted by law enforcement claims of being overwhelmed by harassment, stalking, neighbor-dispute, and violence or threat-of-violence complaints, passed Section 527.6 of the California Code of Civil Procedure. The statute addressed citizen complaints while minimizing law-enforcement involvement. Enacted “to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution,”[1] the statute encompassed not only physical and verbal behavior, but various modes of communication. Today, that includes land-line and cell-phone calls, faxes, email and text messages, and social-media posts.

A Section 527.6 Petition for a restraining order, however, is “not an ordinary civil action.” [2] Indeed, ROs are distinguishable from typical civil-litigation injunctions because a) Section 527.6 requires the claimed speech or conduct must be for ‘no legitimate purpose,[3] b) speech that constitutes ‘harassment’ within the meaning of Section 527.6 is not constitutionally protected and may be restrained,[[1] ] and c) an injunction can only apply to harassment as defined by the statute, not by the individual. In other words, if the speech or conduct revolves around a legitimate purpose or doesn’t fall within the confines of the law’s definitions, the RO petition must be denied. Legitimacy of purpose negates harassment.[[2] ]

If a Temporary Restraining Order (TRO) was granted before the hearing the damage to the Respondent’s record is already done.

That Petitioner in a Section 527.6 case, by the way, must be a natural person. Only a living, breathing human being—not a group or corporate entity—can obtain or be subject to a permanent restraining order injunction (RO) based on harassment. But that doesn’t mean someone cannot file on behalf of another person. In response to a decision limiting relief to individuals[[3] ], the legislature in 1994 enacted California Code of Civil Procedure Section 527.8. Basically they are the same in many particulars, however, there is a significant difference in one major area.  Only violence and credible threats of violence are considered, while Section 527.6 allows for relief based on civil harassment, as defined by the statute. Section 527.8 requires employers “to provide a safe and secure workplace”, creating a statutory obligation.  Failure to do so may be considered negligence per se with all of the ramifications.  It allows employers to file for restraining-order protection on behalf of any “credibly threatened” employee. That credible threat, however, does not require proof of intent as long as the Petitioner reasonably fears the threat is real, even if the Respondent does not intend actual harm.[[4] ]  The Legislature in 1998 deleted any requirement of intent.  All that is required is that the statement or conduct be intentionally and willfully made or done.

The TRO

The process to obtain a TRO is simple. The Petitioner completes a six-page form (CH-100 or WV-100) Request for Civil Harassment Restraining Orders) and checks Box 11 (Immediate Orders) on the CH-100 or Box 12 on the WV-100, which requests immediate implementation, and Box 13 (No Fee for Filing or Service) on the CH-100 or Boxes 14 and 15 on the WV-100 to waive the filing fee and making the service of process free. Then, sometimes at the clerk’s urging, they sign form FAM 018 (Declaration of Ex Parte Notice), which precludes any notice to the Respondent.  Because there is no filing fee or other cost, it encourages capricious petitions and wastes the court’s resources.  A system can be designed that requires a Petitioner to take a financial risk, thereby obviating the filing of some frivolous petitions.

Petitioner should be required to pay the filing fee, just as any other litigant, except in cases of serious need such as stalking. If there are financial issues, the court can waive the filing and service fees based on the information provided on Form FW-001 Request to Waive Court Fees. If the Petitioner gets a permanent restraining order injunction, the costs should be recoverable by the Petitioner from the Respondent, just as in small claims court. If they lose, they wouldn’t get their money back.

Even if the Petitioner cannot afford the fees and did not pay them because of a fee and cost waiver, the costs should be assessed by the court as a sanction if they lose or don’t show up at the hearing.  Failure to pay would constitute a contempt. This would make it the equivalent of a citation in vehicle cases. People have to pay the fine or do community service. The court gets the benefit of the additional revenue and the public gains from the community service. If people have to put up money or can be found liable and have to pay the fees and costs (or do community service), they may think twice about filing.

“Costs” can and should be assessed unless the court finds there was prima facie merit to the allegations even though it was insufficient to meet the clear-and-convincing burden.

Once it receives the above, the court must decide whether the Petitioner is subject to “great and irreparable harm” if immediate relief is not granted. If so, it grants the TRO and sets a hearing date not more than twenty-one days later for the permanent injunction hearing. If the court rejects the TRO part of the Petition, it merely sets a hearing date. Since granting the TRO is what triggers the public-disclosure requirement, logic dictates that TROs should be granted sparingly and only when immediate relief is clearly necessary to prevent serious consequences.

Petitioners invariably claim they feel threatened and are in fear for their life. Court discussion defines threat as verbal, written, or implied by a pattern [course] of conduct, or any combination thereof made with the intent and the apparent ability to carry out the threat, to the extent that the targeted person reasonably “fear(s) for his or her safety, or the safety of his or her immediate family”[[5] ] due to following, stalking, or “the use of public or private mails, interoffice mail, unreasonable texts, fax or computer email.”[[6] ] That pattern of behavior must be “composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.”[[7] ] A verbal threat made during a single incident with no prior or subsequent events to indicate the behavior will continue is not viewed as a credible threat.

Most CH-100 Petitions are nuisance issues, such as neighbor disputes, interference with economic advantage, intentional infliction of emotional distress or ex boyfriend/ex girl friend disputes. These would have a better legal remedy in civil court, especially when damages are involved.  But that costs money!

The argument could be made that Sections 527.6 and 527.8 infringe on the right to free speech, the right to bear arms, the right to assemble, and the right to petition for grievances. Hence, the court must weigh the Respondent’s First Amendment personal-freedom rights against the Petitioner’s right to personal or workplace safety. If the allegations are true and the Petitioner’s life or safety is in serious danger, the judge would be remiss to not grant the instant relief provided by a TRO.  Those cases, as well as the TRO cases that are denied, are then set for permanent-injunction hearings, at which the burden of proof is higher.  At that hearing, the burden of proof is “clear and convincing” evidence.

The RO

The Respondent can file a Response on form CH-120 or WV-120.  This is optional.  The Respondent can make their case before a judge at the RO hearing, during which relevant oral testimony, depositions, and affidavits are allowed without filing a formal Response.[[8] ] Cross-examination is not only permitted but given wide latitude, with the burden of proof resting on the Petitioner, who must satisfy the statute’s requirements to obtain a permanent restraining order injunction. As stated in Scripps v. Marin, those requirements are clear and convincing evidence that:

  • To not issue the injunction would subject Petitioner to great or irreparable harm, further violence, or the threat thereof; [[9] ] and
  • The Respondent has not already voluntarily discontinued the wrongful conduct.[[10] ]

The court determines the Petitioner’s credibility by explicitly distinguishing “between political hyperbole, which is protected; and true threats, which are not.”[[11] ] A communication need not specify who would carry out the threat to qualify as a true threat. “The fact that a threat is subtle does not make it less of a threat.”[[12] ] An apparently serious threat may cause the mischief, or evil, toward which the statute was in part directed, in light of “the entire context and under all the circumstances,” including prior violence by third parties.[[13] ] That said, endorsing, encouraging, or even advocating the violent action of others, is protected, but threatening a person with violence is not.[[14] ]

Section 527.8 does not apply to emotional distress of the employee protected, however, that employee can bring his or her own Section 527.6 Petition.

The concept of “threat” has evolved since Section 527.6 was enacted. Today, “fantastical threats that once were taken lightly as fancies of immature youth now cause reasonable persons to pause and even to become fearful…”[[15] ] Ergo, the court must ascertain whether the speech or conduct actually caused substantial emotional distress and “would cause a reasonable person to suffer ‘substantial emotional distress.’”[[16] ] Although the statute does not define the phrase “substantial emotional distress,” the court compared it to “severe emotional distress,” which means extreme mental suffering or anguish from “socially unacceptable conduct so intense and persistent that ‘no reasonable (person) in a civilized society should be expected to endure it’”[[17] ]—even if the speech is not the type constitutionally protected.[[18] ]

In Brekke v. Wills, a significant case that deals with First Amendment issues, a fifteen-year-old boy wrote threatening and menacing letters to his sixteen-year-old girlfriend describing a plot to kill her parents, knowing her mother would read the messages.

The court issued an RO. He appealed, claiming free speech, freedom of association, and right to privacy. The letters, he claimed, would not have caused a reasonable person to suffer substantial emotional harm because any parent should expect some emotional distress when they do not like their children’s choice of friends.

The boy’s appeal was denied and his letters and actions deemed harassment within the meaning of the injunction statute. The court determined they constituted a knowing and willful course of conduct used to annoy, ridicule, and threaten the mother that served no legitimate purpose and would cause a reasonable person to suffer substantial emotional distress. Further he was not entitled to protection because the matter was between and about private parties, and the right of privacy did not entitle him to interfere with her parental right to direct and control her daughter’s activities.[[19] ] “The right of free speech…is not unlimited.”[[20] ]

In contrast, the rule does not apply to an RO issued after a trial prohibiting another defendant from repeating specific statements deemed defamatory.[[21] ] Injunctions should be available as ancillary relief for personal and political defamations.

Restraining Public Speech

To narrow the analytical focus, Section 527.6 specifically excludes “constitutionally protected activity” from the definition of “course of conduct.” More than self-expression, speech on matters of public concern is the essence of self-government and at the heart of the First Amendment’s protection to assure “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”[[22] ] Nevertheless, the court has issued ROs to prohibit public speech.  In a landmark United States Supreme Court case (Schenck vs. U.S.) Justice Oliver Wendell Holmes, Jr, stated “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic”.[[24]]

To be protected from restraint, statements must “be something of concern to a substantial number of people,”[[23] ] not merely a relatively small, specific audience, and must have a “degree of closeness” to the public interest, not merely a broad, vague connection.[[25] ] Furthermore, the speaker’s statements and conduct cannot merely be for the purpose of gathering “ammunition for another round of (private) controversy.”[[26] ] Private conduct can serve the public interest if it impacts a broad segment of society, especially in situations where large, powerful organizations may impact many private lives.[[27] ] Consequently, the public-interest component is met when the speech or conduct involves a topic of widespread public interest and in some manner contribute(s) to the public debate. Websites are public. A public street is a “traditional public forum.”[[28] ]

In one example, the owner of an animal-testing lab sued for trespass and RO harassment protection following vandalism and a vigil in front of the Petitioner’s house. The court held that teaching about the need to resort to force and violence is not the same as preparing or steeling a group for such action. Hence, “spontaneous and emotional” appeals for unity and action does not incite lawless action and cannot be prohibited.[[29] ]

Furthermore, prohibiting a party from making or publishing false statements is a classic type of unconstitutional prior restraint. “While [a party] may be held responsible for abusing his right to speak freely in a subsequent tort action, he has the initial right to speak freely without censorship.”[[30] ]

On the other hand, picketing is a protected-speech activity but not if the picketing constitutes trade libel. The court can issue an RO to restrain a party from physically impeding pedestrian or vehicular traffic and even from creating a disturbance or harassing customers uninterested in their message.

The RO must be “couched in the narrowest terms” to pin-point the speech or activity prohibited in wording that gives “a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” In Evans v. Evans, for example, a Court of Appeals applied those criteria in its ruling that an RO granted to a deputy Sheriff by a trial court against his ex-wife to prevent her from contacting his employer and publishing “false and defamatory statements” or “confidential personal information” on the Internet was overbroad.[[31] ] While admitting the trial court had the authority to prohibit certain speech and/or conduct, the circumstances for such restraint must be “narrowly drawn,” and clearly defined.[[32] ]

Had the injunction been issued following the trial to prohibit the defendant from repeating statements found to be defamatory during trial, it would not be prior restraint or “offend the First Amendment.”[[33] ]

Hearsay

Hearsay is admissible in both the TRO application and at the hearing, per Kaiser v. Wilson, which cited Schraer v. Berkley’s finding that the Section 527.8 language “reflects an intention to give trial courts wide latitude in determining what evidence to credit,” and if said evidence is hearsay but nonetheless relevant, the court should receive it.[[34] ] Consequently, nothing prevents questionable or misleading hearsay from consideration.

Police reports are a prime example. The officer takes information from the complaining party, who refers to people saying and doing things that are clearly hearsay. The Respondent has no safeguard since they are not present when the report is taken, but can argue the hearsay’s admissibility/weight at the hearing.

In one example, a psychologist petitioned for an injunction against a former patient who started to harass her after treatment was terminated. She claimed the Respondent followed her, tried to stop her car, kept her house under surveillance, sent threatening letters, and made calls to other professionals to harm her reputation.

At the hearing, Respondent claimed insufficient evidence, objected to the hearsay declarations, and demanded the Petitioner testify. The court held instead that Petitioner’s direct testimony was not required, that relevant circumstantial evidence was admissible, and that the evidence was sufficient without Petitioner testifying she had suffered emotional distress. “Circumstantial evidence” can be substantial evidence for an inference based on it, which may be drawn not only from the evidence, but from the witnesses’ demeanor and manner of testifying.

In another example, the Petitioner submitted declarations to support the TRO application. The judge ruled, “As long as the hearsay evidence presented at a Section 527.8 hearing is relevant, the court is to consider it.”[[35] ] The hearing need not proceed as a full-fledged evidentiary hearing with oral testimony from all sides. “The hearing may be based on affidavits or declarations, which are, themselves, a form of hearsay evidence.”[[36] ]

Schild v. Rubin

Sections 527.6 and 527.8 were put in place to protect individuals who are under real threat of danger, but it is often used as a route for immediate, albeit temporary relief from personal annoyances. In Schild v. Rubin, a classic neighbor dispute, one party complained the other made too much noise playing basketball. The neighbors began harassing each other. The quiet neighbor filed a civil complaint and petitioned for a TRO and injunctive relief. The basketball player filed a cross complaint. Both complaints included causes of action for nuisance.

A TRO and injunction was issued against the Respondent and not appealed, but then the Respondent obtained a TRO and an injunction against the Petitioner, even though “[a] reasonable person must realize that complete emotional tranquility is seldom attainable and some degree of transitory emotional distress is the natural consequence of living among other people in an urban or suburban environment.”[[37] ]

Some Petitioners allege the complained-of conduct is a nuisance, that nuisance is harassment, and that the conduct should therefore be enjoined via a TRO and a permanent injunction. In response, the court stated, “Excessive and inappropriate noise may under certain circumstances constitute an interference with the present enjoyment of land amounting to a nuisance.”[[38] ] In other words, in some instances, yes, nuisance can be the basis for both a TRO and an RO. But the Court stopped short of announcing a blanket rule, insisting that each case must be decided on its own facts. Annoyances or disturbances themselves do not constitute harassment if there has been no injury to the other party’s legal rights. “People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others.[[39] ]

Cross Petition

A Respondent can file a cross petition.

At the close of an argument in a Section 527.6 hearing, a Respondent may ask that the orders be mutual, but the court cannot grant a mutual injunction over the Petitioner’s objection unless the Respondent has filed a separate CH-100 Petition prior to the hearing so the court can consider evidence offered by the new Respondent. In Kobey v. Morton, for example, the court granted mutual orders on a Respondent’s oral request, although she had not filed a Petition herself. When the Petitioner appealed, the Court of Appeal held that the trial court exceeded its authority.

Sections 527.6 and 527.8 provide that each party file and serve a formal pleading to allow the other party to have due process;[[40] ] i.e., both sides have the right to respond and present evidence. Granting an order for restraint without a formal pleading is an abuse of discretion. Respondent can file a response on form CH-120 or WV-120, and a Petition of his or her own, to be served not less than 2 days before the hearing.

From a practical standpoint, Respondent could have prevented the immediate effect of a TRO or permanent injunction by filing an appeal, thereby nullifying the court’s Order until the appeal was determined.

Bankruptcy

Some participants have filed bankruptcy to stay any effort to enforce the Order. That does not work; there is no stay.[[41] ]

Request for Continuance

Often, Respondents want or need time to respond and obtain counsel, but although Section 527.6 seems to provide for an automatic continuance, this is not an absolute entitlement. “There is no mandatory right to a continuance under Section 527.6.”[[42] ] This discretionary call is entirely up to the judge.

In Freeman v. Sullivant, Respondent’s appearance attorney sought a continuance, which was denied. Afterward, the lawyer had the opportunity to review the file and interview the Respondent before the hearing took place. Nevertheless, the court found a credible threat and issued an injunction. The Respondent moved ex parte to set aside the injunction, claiming the right to a continuance.

The court held the Respondent was not entitled to a continuance of the hearing because “Any error in failing to grant a request for a continuance, whether mandatory or discretionary, is reversible only if it is tantamount to the denial of a fair hearing.[[43] ] The appearance attorney was given an opportunity to interview Respondent and prepare for the hearing; ergo, the Respondent was not prejudiced.

Civil Case v. Section 527.6 and 527.8 ROs

Preliminary and permanent injunctions that arise from civil cases, which can take some time for finality, are significantly unlike those issued through Section 527.6 and 527.8 petitions, which are designed to be streamlined and quick. While Section 527.6 and 527.8 Petitions are essentially free, for example—the cheap way to bring a matter to the court’s attention without taking any financial risk other than attorney fees—civil plaintiffs must pay filing and service fees as well as attorney/discovery costs.

Other differences are also noteworthy. In a civil case, the opposing party/ Respondent gets notice and can argue against the preliminary restraining-order injunction. The Respondent in the Section 527.6 or Section 527.8 case is completely deprived of due process and thus has no opportunity to impeach the Petitioner in connection with a TRO.

In a civil case, the preliminary injunction is not reported to CLETS. In the Section 527.6 and 527.8 case, as stated above, the TRO is not only reported but remains in the official database for five years and in various online databases forever.

In a civil case the plaintiff/Petitioner must post a bond to obtain an injunction, while that is not required in Section 527.6 and 527.8 cases.

In a civil case, the plaintiff/Petitioner bears a burden of proof. They must show a preponderance of evidence to demonstrate irremediable harm not covered by money damages as well as a lack of prejudice. In a Section 527.6 or Section 527.8 TRO, the burden is almost nonexistent, as the matter is whatever the Petitioner says, with or without any supporting evidence.

Finally, a Section 527.6 or 527.8 case allows for no discovery. If Petitioner loses there can be no action for malicious prosecution. Both can occur in connection with a civil case.

SLAPP and anti-SLAPP

Are §§ 527.6 and 527.8 petitions subject to an anti-SLAPP Motion to Strike pursuant to Code of Civil Procedure § 425.16?

The answer is technically yes. The anti-SLAPP statute applies to challenging petitions for injunctive relief brought under §§ 527.6 and 527.8 because they constitute “causes of action” under the anti-SLAPP law. But it is rarely done because the process is too complicated with the expedited time frames.

 

In reality, the same type of anti-SLAPP defenses are merely pled in the Response or are argued orally at the time of th0e hearing. The result is the same. Since the anti-SLAPP motion does not delay the § 527.6 or § 527.8 hearing, little is gained by making a separate motion.

A Respondent or attorney can file an anti-SLAPP (§ 425.16 CCP) type response on form CH-120 or WV-120 to respond to allegations in the Petition without having to file an anti-SLAPP motion.

Attorney Fees

In an attempt to limit RO cases to those that have reasonable merit, Section 527.6 provides for attorney fees to the prevailing party, defined in California Code of Civil Procedure Section 1032 as: “prevailing party includes a defendant in whose favor a dismissal is entered.”[[44] ] This presents a risk to both parties; i.e., if the Petitioner does not have a strong enough case to be granted an RO, the Respondent can recover fees. If it does, then fees are available.  The same is true for the Respondent if the RO is granted.  Consequently, Respondents can minimize the financial impact by either settling the case or agreeing not to engage in the conduct that is the subject of the action.  The court can then deny the Petition.  There is no attorney fee provision in Section 527.8 cases.

(a) Case Examples

  • In Krug v. Maschmeier, Respondent successfully defended the petition for a Section 527.6 injunction and sought attorney fees. He claimed that even if the action was brought in good faith and not frivolous, should the trial court in its discretion decide to award such fees, he was entitled to them.[[45] ]  He was correct.
  • In a case where Petitioner successfully obtained a TRO, she claimed she was the “prevailing party” because the order was granted even though she voluntarily dismissed the petition for an RO before the hearing. The court disagreed, basing its analysis on the fact that because a TRO is obtained ex parte, the process does not generally provide due-process safeguards.[[46] ] Hypothetically, anyone could obtain a TRO, do nothing more, and seek attorney fees for getting the TRO. That would be unfair.

At times, final determination is a voluntary dismissal with prejudice, which allows Respondents the right to seek fees and costs after dismissal. Attorney fees recoverable under statutory authorization are deemed an element of costs.[[47] ]

If the parties settle and agree on mutual restraining orders, the prevailing party is the one that gets what it sought; i.e., the Petitioner, who sought relief and obtained it.

  • In a neighbor dispute, the Respondent allegedly played loud music at a disturbing level. Before a hearing, the parties stipulated to mutual restraining orders. The Petitioner then sought attorney fees and costs, claiming to be the prevailing party. The court used Code of Civil Procedure Section 1032 and applied it to Section 527.6, leaving that determination to the trial court’s discretion, not to be abused. The court held:

… a party prevails, in essence, when he gets most or all of what he wanted by filing the action. A plaintiff will be considered a prevailing party when the lawsuit ‘was a catalyst motivating defendants to provide the primary relief sought’ or succeeded in ‘activating defendants to modify their behavior’.[[48] ]

Moreover, [a] Petitioner should not be denied attorneys’ fees because resolution in the Petitioner’s favor was reached by settlement.[[49] ]

Whether to award attorney fees to a prevailing party, Petitioner or Respondent under section  527.6(I), is a matter committed to the discretion of the trial court.[[50] ]

Weapons

Any TRO or RO prohibits the Respondent from owning or possessing a firearm, even if licensed or even trying to buy one.  The Respondent can retrieve their firearm(s) at the end of the order’s term, but while the order is in effect, they will be charged with a crime if found in possession or trying to acquire one.

While the NRA has never addressed this aspect of the standing prior restraint law, it plays directly into the current controversy over calls for stricter gun control. Clear, effective legislation is already in place to control firearm access by individuals with impulse-control or anger issues. It is in the existing restraining law, but is infrequently enforced.  At least in RO hearings, the gun owner has a due-process right to confront and cross-examine witnesses and make their argument. The same cannot be said of traditional restrictive gun legislation, which never includes these Constitutional underpinnings and is always completely results oriented.

For employers, the obtaining of an RO can be used defensively to show due diligence in responding to claims of negligence or to respond to claims of discrimination or wrongful termination.  The argument would be that a disinterested and neutral judge made a factual finding that the statements or conduct fell within the provisions of the statute and that the employer did take measures to protect its employees..  There would appear to be justification for the restrictions on gun ownership, possession or acquisition provisions.  Sellers of firearms could be required to check the RO data base, before selling a firearm, a violation of which could be a crime, as well.  The restraining order mechanism can be used to establish a national data base for sellers of guns to use. They would be obligated to notify law enforcement, thereby providing advance notice of a potential threat. If they do not use the data base and provide notice, if applicable, they could be prosecuted as an accessory if a crime is committed by the Respondent.

Domestic Violence cases

For domestic violence cases the judge in Family Court can follow the same protocol as in the civil harassment cases, finding a party in violation of an Order issued by that judge, including gun limitations. It would include the same or similar punitive actions as described below. 

Violation of the TRO or RO

Violation of either Order is a crime, a misdemeanor.  If the Respondent does not comply with the Order, they face incarceration, a fine or both and other punitive action, such as a requirement for community service and attending anger management classes.  Such conditions also provide a societal benefit to the public, as well, because it may assist in a rehabilitative process.  There is an incentive to comply to avoid the ramifications.  For a violation, the Respondent can be arrested, necessitating bail, if they want to get out of jail, and probably engaging a lawyer at a significant expense. Or, the Petitioner can seek an Order to Show Cause for a hearing re: contempt.  If convicted of the crime or found in contempt, the Respondent faces jail and/or a fine, plus the other conditions.  It is the equivalent of a probation violation.  It will get their attention.

In some civil harassment cases, as well as in domestic violence cases, there is either an anticipated or an actual criminal case pending or to be pending in which Respondent is likely going to be charged or has been charged in a criminal complaint or indictment.  But, there has not yet been a preliminary hearing and trial.

Also, there will be times that the Respondent is incarcerated and, although properly served, cannot appear for the hearing.  In both instances, and others, there are constitutional issues.  An experienced trial judge can appropriately deal with these issues.

Conclusion

California Code of Civil Procedure Sections 527.6 and 527.8 are serious statutes that allow the courts to impose prior restraint orders that can have life-altering ramifications for the Respondent. The TRO, usually issued ex parte, and the RO, if it is issued, must be delivered to law enforcement the same day indicating immediacy. The Order is immediately entered into the CLETS, thereby providing any member of law enforcement who searches the database with the date, judge, and terms of the Order. While the court may modify the Order pursuant to Section 527.6, that does not affect the fact that the TRO was issued. The TRO, if issued, merges into the permanent injunction.

The CLETS report may indicate that the Order was modified. If an RO is not granted, the TRO information is moved to the inactive files after thirty days, where it remains for the five years, but it still shows that the Petition for a TRO was granted by a judge.  It remains accessible to parties doing online background checks. TROs can turn up in background checks for job applications, security clearances, and possibly even loan applications.  It never goes away. That is serious.

Herbert Dodell

Herbert Dodell is a Superior Court judge (Pro Tem). During his seven years assigned to Civil Harassment calendars throughout the courts in Southern California, he has reviewed hundreds of TRO petitions and has presided over numerous hearings. He is a member of the American Board of Trial Advocates.  He currently presides over restraining order, unlawful detainer, small claims, and civil litigation cases.  He can be reached at (310) 824-1515 or herb@dodelllaw.net.

© 2015, Herbert Dodell

[[1]] Huntingdon Life Sciences, Inc., et al. v. Stop Huntingdon Animal Cruelty, USA (2009) 129 Cal.App.4th 1228, (29 Cal.Rptr.3d 521)

[[2]] U.S.S.-Posco v. Edwards (2003) 111 Cal.App.4th 436, 4 Cal.Rptr.3d 54

[[3]] Diamond [supra]

[[4]] Diamond [supra]

[[5]] Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252, 59 Cal.Rptr.3d 692

[[6]] Brekke v. Wills (2005) 125 Cal.App.4th 1400, 23 Cal.Rptr.3d 609

[[7]] Schraer v. Berkeley (1989) 207 Cal.App.3d 723, 255 Cal.Rptr. 453

[[8]] Schraer [supra]

[[9]] Los Angeles v. Animal Defense League (2003) Cal.App.4th 399, 5Cal.Rptr.3d [9] Russell v. Douvan (2003) 112 Cal.App.4th 399, 5Cal.Rptr.3d 137

[[10]] Russell v. Douvan (2003) 112 Cal.App.4th 399, 5Cal.Rptr.3d 137

[[11]] Huntingdon [supra]

[[12]] Huntingdon [supra]

[[13]] Huntingdon [supra]

[[14]] Huntingdon [supra]

[[15]] Brekke [supra]

[[16]] Schild (1991) 232 Cal.App.3d 755, 283 Cal.Rptr. 533

[[17]] Schild [supra]

[[18]] Evans (2008) 162 Cal.App.4th 1157

[[19]] Brekke [supra]

[[20]] Huntingdon [supra]

[[21]] Evans [supra]

[[22]] Dun & Bradstreet [supra]

[[23]] Dun & Bradstreet [supra]

[[24]] Schenck vs United States  249 U.S. 47

[[25]]Thomas v. Quintero (2005) 126 Cal.App.4th 635, 24 Cal.Rptr.3d 619

[[26]] Quintero [supra]

[[27]] Quintero [supra]

[[28]] City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, [37] Cal.Rptr.3d 632

[[29]] Huntingdon [supra]

[[30]] Evans [supra]

[[31]] Evans [supra]

[[32]] Evans [supra]

[[33]] Evans [supra]

[[34]] Kaiser v. Wilson (2011) 201 Cal.App.4th 550, 133 Cal.Rptr.3d 830

[[35]] Kaiser [supra]

[[36]] Kaiser [supra]

[[37]] Schild [Infra]

[[38]] Schild [supra]

[[39]] Schild v [supra]

[[40]] Kobey v. Morton (1991) 228 Cal.App.3d 1055, 278 Cal.Rptr. 530

[[41]] Grant v. Clampitt (1997) 56 Cal.App.4th 586, 65 Cal.Rptr.2d 727

[[42]] Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 120 Cal.Rptr.3d 693

[[43]] Freeman [supra]

[[44]] Evans [supra]

[[45]] Krug v. Maschmeier (2009) 172 Cal.App.4th 796 (2009); 91 Cal. Rptr.rd452

[[46]] Adler v. Vaicius (1993) 21 Cal.App.4th 1770 (1993); 27 Cal.Rptr.2d 32

[[47]] Byers v. Cathcart (1997) 57 Cal.App.4th 805, 67 Cal.Rptr.2d 398

[[48]] Elster v. Friedman (1989) 211 Cal.App.3d 1439, 260 Cal.Rptr. 148

[[49]] Elster [supra]

[[50]] Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 91 Cal.Rptr.3d 452