A Civil Harassment Restraining Order is an order issued by a court and is specifically designed to protect an individual from harassment, threats of violence, stalking or physical abuse by the person specified in the order. Also known as a Civil Harassment Protective Order, this order dictates the permitted and prohibited behavior, and instructions to the recipient to abstain from contact with the protected person. Civil Harassment Restraining Orders are issued against people who do not qualify as close family members as defined under Family Law.

The documentation necessary in obtaining or contesting restraining orders is complex, and the requirements are strict. Whether you want to get or challenge a Civil Harassment Restraining Order in or around San Diego, CA, our expert lawyers at San Diego Restraining Order Attorney will aggressively represent you in court.

California Law on Civil Harassment Restraining Orders

Section 527.6 of The Code of Civil Procedure codifies all matters regarding restraining orders given due to civil harassment.

The code defines harassment as:

  • credible threats of violence,

  • unlawful violence,

  • deliberate actions towards you that extremely annoy, harass or alarm you and do not serve a legitimate purpose, or

  • behavior that would cause significant emotional distress to a reasonable person, and you experience such distress.

You qualify to apply for California Civil Harassment Restraining orders against a person or people who have:

  • Threatened you with abuse, abused, severely harassed, stalked or sexually assaulted you

  • Seriously annoyed, harassed or scared you.

A restraining order will prohibit the restrained person from:

  • Contacting you or your household members by email, text messages, phone calls or interaction through social networking sites

  • Going near you, people you live with, or your children regardless of the place

  • Going near your school, work, or your children’s school

  • Having a gun

  • Any form of surveillance

You can obtain a Civil Harassment Protective Order against a person with whom you have no close relationship such as marriage, dating, or living together, whether you know them or not. These people include:

  • A friend

  • A roommate if you have never dated

  • A neighbor

  • Family members above two degrees removed

  • Any other person that you are unrelated to

You cannot seek a Civil Harassment Restraining Order against:

  • A former or current spouse or partner

  • A close relative such as a child, parent, grandparent, in-law or sibling

  • A person you have ever dated

For these, you will need a Protective Order under Domestic Violence laws.

Types of Civil Harassment Restraining Orders

There are four types of Civil Harassment Restraining Orders that you can obtain from California courts.

  1. Emergency Protective Order (EPO)

    Only law enforcement officers can request an Emergency Protective Order. In an emergency, the officers can contact the judge on call at any time, 24 hours a day to issue an emergency order. However, the order can only be issued in cases that involve stalking. The Emergency Protective Order is valid for seven days, which is enough for you to request for a temporary restraining order.

  2. Temporary Restraining (Protective) Order (TRO)

    When you request protection from the court for civil harassment, you must fill out paperwork that details the occurrence and the reasons for your request. If you convince the judge, he or she will issue you with a temporary restraining order. The temporary order lasts for up to three weeks or until the date of the court hearing.

    You can seek a temporary restraining order if:

    • You are a victim of any form of harassment

    • Your emergency protective order expires

  3. Permanent Restraining Order (PRO)

    Often, a hearing will be held before your Temporary Restraining Order expires to determine whether a permanent order is necessary. The order is issued if you convince the court that you need extended protection.

    The judge will hear from both parties before determining:

    • Whether the order is necessary

    • The validity period of the order

    • The restrictions to add to the order

    PROs often last three years but may be extended for up to five years.

  4. Criminal Protective Order

    Also referred to as a Stay-Away Order, it is issued against an offender when there is an incident or several incidents of severe harassment or violence. In such cases, the district attorney files criminal charges against the offender, and the order is valid while the case is going on. If the offender is found or pleads guilty, the order remains valid for three years after the conclusion of the case.

Obtaining a Civil Harassment Restraining Order

When you petition the court for a civil harassment restraining order, you must file forms in court informing the judge about the protection you want and why. The court case will follow the following general procedure:

  1. Ask for the restraining order by filing forms in court.

  2. The presiding judge will determine whether to grant or deny the order before the end of the following business day or sooner. The clerk will then set a hearing date.

  3. If your request is granted, the judge will provide a temporary protective order that will be valid until the date set by the clerk for hearing. The order may prohibit the restrained person from any form of contact with you and others under protection.

  4. Serve a copy of the order and all relevant documents to the restrained person before the hearing date. You cannot serve the person yourself. Instead, you send a person aged 18 or older to hand-deliver the papers to the recipient.

  5. Attend the hearing in court. If you miss the hearing, the temporary order will expire that day, and no other restraining order will be issued. If the restrained person fails to attend the hearing, they will not have an opportunity to contribute to the case, and their defense will not be considered.

  6. During the hearing, the judge will decide whether to extend or terminate the temporary protective order. If the judge extends the order, it becomes a permanent restraining order that may last for a maximum of five years.

Effects of Restraining Orders Granted Against You

Any Restraining Order against you will have implications on how you conduct yourself, including:

  • After the court issues a restraining order against you, it is recorded in a statewide computer system. All law enforcement officers across the state can see the record.

  • The order prohibits you from doing certain things and going to certain places

  • You will not qualify to own a firearm. You must sell, turn in or store any guns that you possess within the period that the order remains in effect.

  • The order may affect your immigration status

  • You may be required to pay legal fees for the person seeking the order

  • If you violate the order, you may pay a fine, go to jail or both.

Responding to a Restraining Order Granted Against You

If you receive a notice of a Civil Harassment Protective Order issued against you, you can file your response before the hearing date. Here are the steps to follow:

  1. Prepare for filing

    • Fill out the necessary forms. These include:

      • Form CH-120: Response to Request for Civil Harassment Restraining Orders

      • Form MC-025: Attachment to Judicial Council Form or Form MC-020 (Additional Page) if you require extra writing space

      • Form MC-030: Declaration or Form MC-031 (Attached Declaration) for witness statements

    • Fill out any forms required by your local courts. The court clerk can provide the forms, or you can get them from the court's website

    • Have the self-help services office at the court review your forms before you file to ensure that you completed them correctly

    • Make two or more copies of each form, the original remains in court; one copy is yours while the other is sent the person under protection

  2. File your response and serve the petitioner

    • The clerk at the court must retain the original, then stamp the copies ‘Filed’ and return them to you. Filing fees apply if the petitioner did not claim violence in their request, but you may get a waiver in a situation where you are unable to pay.

    • Ask a process server, or someone aged at least 18 years to mail copies of the response to the person seeking the order. Do not serve them yourself.

    • Ask the server to complete Form CH-250 (Proof of Service of Response by Mail) for you. File the form in court and ensure you keep one copy.

    • If it is not possible to file the response before the hearing, have the forms at the hearing.

  3. Prepare yourself and attend the court hearing

    • Have two copies of each form, including proof that you served the petitioner.

    • Organize and have your evidence with you, including witness statements. Sometimes, witnesses present during the hearing may be permitted to talk.

    • If speaking English is difficult for you, ask for a translator from the court or take someone with you.

    • Practice and write down what to say in your defense.

  4. During the hearing

    • Sit away from the person requesting the order.

    • Be calm, brief, use appropriate language, and provide complete answers to all questions.

    • Speak only when it is your turn and to the presiding judge unless you have been allowed to ask other people questions.

    • Ask for clarification of any unclear questions.

  5. After the hearing

    • The presiding judge will decide to:

      • Grant the orders in part or in full,

      • Deny the request, or

      • Postpone the case to another date. If your case is adjourned, the temporary orders are valid until the new court date.

    • If the Restraining Order is granted, you must comply with it. You are also not allowed to possess a gun. If you have one, hand it over to the police or sell it to a licensed dealer. File proof of this to court using the Proof of Firearms Turned In, Sold or Stored (Form CH-800).

    • If you were absent during the hearing of your case, Form CH-130, Civil Harassment Restraining Order After Hearing (CLETS-CHO) will be sent to you a few days after the hearing concludes.

    • If you participated in the hearing, obtain a copy of Form CH-130 from the court clerk. If it contains anything different from the judge’s orders, contact the court clerk’s office immediately. If the clerk is unable to help, talk to an attorney or the self-help services office at the court.

Charges of Violating a Restraining Order

If you do not adhere to the terms of a restraining order issued against you, you will face criminal charges under Penal Code 273.6 PC. The prosecutor must prove three main elements to successfully charge you for the crime of violating a restraining order, also known as contempt of court.

  1. The restraining order was legal.

    The law requires that you obey a legal restraining order, but the law does not bind you to an illegal restraining order. However, if you believe a restraining order issued against you is illegitimate, you need to consult an attorney to challenge it before you get arrested for noncompliance. Challenging the order is less complicated than defending yourself against charges of violating it.

    A restraining order can be illegal if:

    • A court without jurisdiction issued it

    • There was no legal basis for issuing the order

  2. You were aware of the order.

    The prosecutor must provide convincing evidence that you were aware of the restraining order. This evidence includes proving that you had a chance to read the order, regardless of whether you read it.

    California law specifically requires you to be given notice that your freedom is being limited. The notice may be issued;

    • orally by the presiding judge during the hearing,

    • in writing by the person who personally delivers the order to you including a police officer, or

    • verbally by a police officer called in to execute the order if the officer determines that you were unaware that the order exists.

  3. You deliberately violated the order.

    If you know there is a valid restraining order granted against you, but you intentionally ignore it, you are liable for violating the order. For example, if a restraining order prohibits you from contacting a former workmate, yet you send the person a gift as a way of apologizing, you are violating the order willfully.

    However, if you were ordered to stay away and you accidentally meet in a grocery store, you have not purposely violated the order. In such a scenario, you must demonstrate that you did not communicate with the person or that you left the place immediately.

Possible Defenses Against Charges of Violating a Restraining Order

There are several legal defenses that your attorney can assert against charges of violating your restraining order.

  1. Lack of knowledge

    A judge cannot convict you for violating an order that you were not aware existed. This defense would be more effective if the order was issued in your absence. It also works in cases where you were away from the victim when they received approval for the emergency restraining order.

    If you can prove that you never received notice of any restraining order issued against you, you cannot be held accountable for violating that order.

  2. Lack of intent

    You are not criminally liable for violating the restraining order if you never defied it intentionally. An example is if you accidentally meet the person under protection at a public or social function. Additionally, if the person contacts you, you should not respond or agree to a meeting. Only a judge can lift the terms of the order. Similarly, if you think the order is inappropriate, you must still comply with the conditions until you challenge it in court and a judge lifts it.

  3. False allegations

    It is wise to comply with the terms of a protective order. Even if the other party contacts you or asks for a reconciliation meeting, you must obey the order. Such contact can be used to set you up and have you arrested for violating the order. However, your attorney can investigate the allegations and prove your innocence.

Penalties for Violating a Restraining Order

Violating Penal Code 273.6 PC for the first time is a misdemeanor punishable by:

  • A maximum fine of $1,000

  • A one year or less county jail term

For a second conviction within seven years, and if it involves violence or credible threats of violence, the offense becomes a wobbler.

  • If charged as a misdemeanor, you receive:

    • maximum one-year in county jail

    • A maximum fine of $1,000.

  • If charged as a felony, you get

    • probation and one year or less in county jail

    • 16 months to two or three years in state prison

    • A maximum fine of $10,000

  • If the victim suffered a physical injury, you must serve a mandatory 30 days minimum in county jail

For a second conviction within one year involving physical injury to the victim, the offense is charged as a wobbler

  • Misdemeanor: six months to one year in jail

  • Felony:

    • Probation and not more than one year in jail

    • 16 months or a two or three-year jail term

The mandatory 30 days or six months in jail do not necessarily have to apply in full. The judge can grant you a stay on the remaining custody time if you serve at least 48 hours of the 30-day jail sentence or 30 days of the six-month sentence.

Your attorney may persuade the judge by:

  • Presenting mitigating factors

  • Demonstrating that you are remorseful

  • Presenting evidence that you have or are almost completing your counseling.

Talk to a San Diego Restraining Order Attorney Near Me

Whether you need protection or there is an order issued against you, there is a need for an experienced attorney to handle all the necessary legal procedures. If you require legal representation in your Civil Harassment Restraining Order case in or around San Diego, call us at 619-728-6293, and we will handle the case on your behalf.