If someone has filed a petition to obtain a restraining order against you it is imperative that you seek counsel right away to preserve your legal rights, your good name, and your livelihood.
Although the Judicial Council of California has created forms that make it simpler for parties to represent themselves it is a good idea to have an experienced restraining order defense lawyer on your side. Without a knowledgeable restraining order defense attorney on your side, a court may issue a restraining order against you for up to three years. In addition, the court may order you to pay the petitioning party's (the one claiming to be harassed) costs and attorney's fees.
If the petitioning party obtains a restraining order against you they will hold a significant amount of power and leverage over you. This power can be used either justly or unjustly. This party can involve law enforcement in your affairs. Once law enforcement is involved it is very likely that the police will side with the court and the protected party against you.
With the cops at the scene you can be arrested and placed in jail. The District Attorney may even choose to file charges against you. If you are convicted of violating the court's order, you can be placed in jail for up to one (1) year and forced to pay a fine of up to one thousand dollars ($1,000). Depending upon the nature of the second conviction, you can be sent to prison.
What Constitutes Harassment under Code of Civil Procedure § 527.6
In California, "harassment" is defined by statute. Below are the definitions of harassment as provided for in section 527.6.
Harassment is defined as: "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.
Unlawful violence is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.
Credible threat of violence
Credible threat of violence is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.
Course of conduct
Course of conduct is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of "course of conduct." The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff."
A Good Restraining Order Defense Lawyer can Help Your Case
A judge can only issue a civil harassment restraining order under California Code of Civil Procedure section 527.6 if the petitioning party proves by clear and convincing evidence that you have harassed them. Often times, the party seeking the restraining order as well as the party to be restrained will not know whether harassment has in fact occurred. What's worse, it seems like that the court at time may not know whether harassment has occurred either.
At Ahmed & Sukaram, Attorneys at Law, we have defended petitions for restraining orders in San Mateo, Santa Clara, San Francisco and Alameda Counties. We can help defend you regardless of whether your actions constituted harassment within the meaning of section 527.6 or not. Let us use the significant amount of knowledge that we have gained from deciphering the statute and complex case law to your advantage. It is possible that we can resolve your case without a restraining order being issued against you.
The Ramifications of a Civil Harassment Restraining Order
Contact Ahmed & Sukaram, Attorneys at Law so that we can help you avoid the significant consequences of having a restraining order being placed against you. If a restraining order is issued against you your employer may find out about it and fire you. Your employer will not know whether the allegations in the restraining order were genuinely true or whether the judge issued the order against you because you didn't show up for your hearing to challenge your accuser's false claims.
A violation of the restraining order may even have negative immigration consequences for non United Citizens.
Moreover, your right to own, possess or purchase a firearm will be restricted for the duration of the time that the restraining order is issued against you. If you own, purchase or possess a firearm during this time period you can be punished under Penal Code section 12021(g) for up to one (1) year in the county jail and up to a one thousand dollar ($1,000) fine, or both.
Time is Limited
If you are served with a petition for a civil harassment restraining order you must act quickly. Once you have received the petition, it is very likely that the court has already issued a temporary restraining order against you. At this point you only have between 15 and 22 days to respond to, prepare and oppose the petition. By hiring an attorney at the outset you are likely to keep your attorney's fees down and increase your likelihood of preparing a more effective defense.
If you Win your Case
If you are successful in defending against a petition for a restraining order you may be able to recover your court costs and attorney's fees. This would mean that your false accuser would have to pay you for the expense that they have unnecessarily put you through.
Appealing the Issuance of a California Code of Civil Procedure 527.6 Restraining Order
At Ahmed & Sukaram, Attorneys at Law, we are appellate lawyers who know when and how to challenge the issuance of a civil harassment restraining order against you. We will be able to advise you if you have a legitimate issue that is worth raising on appeal.
The standard of review on appeal is quite deferential to the trial court. However, if the trial court abused its discretion in issuing the order against you or if there is not substantial evidence to support the court's findings of fact we can have the trial court's order overturned.
Generally, once the order is issued against you, you only have sixty (60) days to file a notice of appeal. It is imperative that you act quickly to preserve your right to appeal. If you miss the statutory deadline to appeal, you will almost assuredly be stuck with the restraining order against you. However, if you contact Ahmed & Sukaram, Attorneys at Law, right away and you are successful in your appeal, you may be able to recover your court costs and attorney's fees.