Restraining Orders

Restraining Orders in Redding, California

Domestic violence restraining orders are no simple matter. You might need one to stay safe, or you might be facing a loss of your gun rights and right to travel. Don’t make the common mistake of failing to take either the filing or the defending of a domestic violence restraining order seriously. Call Levin Law today.

 

If you’ve been served with a restraining order, you need to tackle it head-on in court. There are numerous defenses you can argue, such as fabrication, retaliation, leverage, and so on. Don’t forget, it is the burden of the petitioner to prove their case, not yours. For domestic violence restraining order, the burden of proof is a preponderance, while for a civil harassment restraining order, the burden of proof is higher, which is called “clear and convincing evidence.” Knowing these differences as well as what is admissible can be crucial to your case. An experienced attorney can help you file your response and defend you at trial. Scared of going to court? There are numerous ways we can settle the case outside of court, for example with a civil agreement that will not affect your gun rights. Whichever route you decide to take, hiring a lawyer will be helpful. For example, you need to know how to defend yourself in case the restraining order will be used against you in a criminal prosecution. Attorney Jacob Levin has dealt with hundreds of restraining orders. He knows what works and what doesn’t work. Depending on the case, you might benefit from using a private investigator who works closely with the office to ensure a better outcome for the case or even teaming up with a co-counsel in a larger case. The worse thing you can do is not file a response and not show up to court. This will likely lead to a default, where you lose without even being heard. There are options if that happens, such as a motion to vacate or a motion to set aside a judgment. Even if you loss at trial, there are still things we can do to overturn the judgment. Let us handle the case for you, including the stress. Our team will make your case a priority, and we will work hard to defeat your restraining order. Call us today at 530-248-2700.

  1. You lose your gun rights. Once a temporary restraining order is granted, you just lost your gun rights. You have to turn your guns in within 48 hours. If you beat the case, you will get your guns back after the mandatory 10 day waiting period. But if you lose the trial, you just lost your gun rights for the duration of the restraining order, which could be up to five years. At the end of the five years the petitioner could ask for an extension.
  2. You lose your right to travel. Up until the restraining order was granted, you could travel anywhere your car would take you. Not anymore. Now you have to be careful not to run into the petitioner at Target, Walmart, the movies, and so on. If you do, you have to leave. There goes your freedom. Once you win case, your travel rights will be restored.
  3. If a permanent restraining order gets granted against you, Family Code section 3044 creates a rebuttable presumption that it is not in the best interests of your children to be in your custody! When you win your case, that presumption will not exist.
  4. If you lose your case and end up getting divorced, the judge can use the restraining order against you in denying your right to spousal support.
  5. It can be used against you in a future case.
  6. If you lose, it can encourage other people to file against you as well.
  7. If you lose, it may lead the District Attorney to file charges against you.
  8. If you win, it may very well discourage the DA to file charges against you because the standard it criminal is so much higher than for restraining orders.
  9. It can lose your case, it can lead to more cases in the form of misdemeanors for violating the restraining order. You cannot violate one that doesn’t exist!
  10. It’s on your record! You can lose jobs, not get hired, be denied rental homes, and so on.

There actually are plenty of more reasons to fight and win your restraining order, but maybe the above ten will give you some food for thought.

There is a lot that goes into fighting your restraining order in Shasta County. Every case is unique, so you do not want a “one size fits all” approach. That being said, I will try to outline some of the most common techniques that may help you in your case.

  1. Focus on the burden of proof. The petitioner is the one who needs to prove their case. As the respondent, you can sit back and not have to prove anything, but that is not advisable. Rather, focus on why the petitioner has not proved their case.
  2. Bring impeachment evidence. Impeachment evidence can be evidence in the form of texts, emails, etc., that you can ask the witness about. If he or she lies about the communication, you then present the evidence you have the witness has just been impeached. This doesn’t end the case, but it lowers the petitioner’s credibility in the eyes of the judge.
  3. Argue the law. Sometimes the law is on your side, and you don’t even know it. There are a lot of restraining order cases that might apply to your situation that you can cite to the judge. If the facts are very similar to your case, the judge is obligated to follow it. For example, see
    M. v. E.P. (2010) 184 Cal.App.4th 1249 where the court holds that “badgering,” was not enough to establish the need for a domestic violence restraining order.
  4. Object to improper hearsay. Hearsay is perhaps the trickiest of all evidentiary objections, so it is hard to admit it and hard to object to it. Be on the lookout for hearsay testimony and object to it timely.

If you require additional help and/or seek legal representation, give me a call at 530-248-2700

When an individual seeks a protective order against a non-relative, they would usually file for a Civil Harassment Restraining Order. (There are quite a few types of restraining orders such as Elder Abuse, gun violence, school related, and others.)

The grounds for a civil case are either 1) violence (including stalking, sexual etc.) 2) threats of violence, or 3) a course of conduct that is harassing and caused substantial emotional distress.

The most common misunderstanding is that 1) and 2) above require there to be emotional distress. This is untrue. If someone punches their neighbor or threatens to kill their friend (some friend) and the neighbor or friend do not suffer emotional distress, they can still seek a civil harassment restraining order.

The petitioner needs only to suffer emotional distress if the course of conduct is harassing but not violence or a threat of violence. 

It is also important to mention that the course of conduct must be enough to cause emotional distress.

The burden of proof is always on the petitioner to prove their case. But to what extent? Clients often ask me how to “prove” something. The answer is that we don’t provide proof, we provide evidence. Evidence is anything relevant that tends to show an act did or did not happen, however slight. Then, each piece of evidence is like a building block, building up to “proof.” How tall the wall of evidence needs to be until it is considered proof depends on what kind of case you are dealing with and then of course what the judge considers is enough.

In domestic violence restraining order cases, the burden of proof (or how tall the wall needs to be) is called a “preponderance of evidence,” meaning just more likely than not, or 51%. That means the petitioner needs to show that the abuse (assuming it is enough to constitute abuse) is more likely than not to have happened.

When the petitioner says, “he hit me,” and the respondent says, “no I did not,” that is what you might call a “he said – she said” and, in number terms, it would be at 50/50. If that is all there is, the petitioner would likely not have met their burden and the case would be dismissed. Rather, they would need something more like a picture, a corroborating witness, text messages, an apology from the respondent, and so on, just to get to the 51%, or more likely than not.

Meanwhile, the respondent can also present evidence that the petitioner is not trustworthy, that the petitioner has motive to lie, that the respondent was not in town at the time of the alleged events, and so on. This is not to say that the respondent has to do that, but in order to win a case it is almost always necessary to show that the allegations are not true.

This is a common question I get from clients, whichever side of the case they may be on. The answer is yes, it is very easy to get a temporary restraining order in Shasta County. In fact, the law says that for the judge to issue the restraint, the petitioner only needs to provide “reasonable proof,” that is an allegation that if true would amount to what is called “restrainable conduct.”

Simply put, if the petitioner alleges anything involving threats, assaults, even yelling (mostly in domestic violence restraining orders but not in civil harassment) the court will issue the temporary.

That being said, getting the permanent one can be much harder. The petitioner (or their attorney) will need to provide actual evidence, not just allegations. They will need to testify to the alleged events, and will be subject to cross examination by the respondent. Recently, I asked a witness who testified against my client on the stand about her criminal history. She LIED and said that she was never convicted of a crime. In about 20 seconds I looked it up and showed the judge, who then told her that not just does she have a felony but she lied about it on the stand –and poof— there went her credibility and the case as well. We may not always get that lucky but that is an example of how hard it can be for a petitioner to prove their case in trial.

In short, yes, it is easy to get a TEMPORARY restraining order in Shasta County, but much more difficult to get the PERMANENT one.