San Diego Temporary Restraining Orders

Temporary Restraining Order Overview

A temporary restraining order, or TRO for short, refers to a written directive a judge or court issues that temporarily safeguards victims from elder abuse, workplace violence, civil harassment, and domestic violence.

This court-issued order instructs the involved abuser not to abuse the involved victim (the person seeking protection). In most cases, the TRO requires the abuser to stay away from the victim and not contact them in any way. In short, a TRO restricts and regulates an abuser’s behavior.

TROs generally remain valid for twenty-one days. In some instances, a TRO can last quite longer, often until the court issues a permanent restraining order (PRO) against the abuser. There are various types of TROs, also known as temporary protective orders. They include:

Workplace Violence TROs

An employer can obtain a TRO to safeguard a worker from being subject to unnecessary violence or threats of violence when they are at the place of work. The TRO extends protection to particular family or household members and other workers at the place of work.

Dependent Adult or Elder Abuse TROs

A dependent adult or elder may seek to apply for a protective court order seeking protection against an abuser. Under California law, an elder refers to anyone sixty-five or older. On the other hand, a dependent adult is someone between eighteen and sixty-four years old who has a disability that prevents them from doing normal life activities.

Abuse under California law is described as emotional, financial, or physical abandonment/neglect or withholding by a caregiver of the basic life necessities, leading to emotional, mental, or physical suffering. A dependent adult or elder abuse TRO may be filed on the dependent adult or elder’s behalf by a trustee or conservator of the dependent adult or elder, a guardian ad litem, or anyone legally permitted to seek relief.

Domestic Violence TRO

Domestic violence TROs are issued in cases where the abuser and victim have or have had an intimate relationship. These include where the involved parties are currently or were spouses, domestic partners, fiance and fiancee, boyfriend and girlfriend, cohabitants, household members, persons who share a child, and persons in a dating relationship. Blood relatives also qualify to request domestic violence TROs.

If you are a victim seeking a TRO for a domestic abuse case, you must prove to the judge by a preponderance of the evidence that you suffered some kind of abuse, including sexual assault or bodily injury (attempted or causing). Or you must show the abuser has placed you in reasonable fear of imminent severe bodily injury.

Civil Harassment TROs

For a court to issue a civil harassment TRO, the abuser and the victim do not need to have a special relationship. Judges issue a civil harassment TRO when someone is subject to threats of violence, sexual assault, stalking, and harassment.

Harassment is described as illegal violence, like credible threats of violence, assault, battery, or a conscious and intentional action directed at a given individual that severely harasses, annoys, or alarms them and serves zero legitimate purpose. Usually, this kind of protective order is issued between strangers, acquaintances, or neighbors.

Some scenarios that courts deem harassment include:

• Constantly following the victim around in public places
• Videotaping the victim’s movements in their home
• Repeatedly texting, emailing, or calling the victim’s workplace or home
• Repeatedly surveilling by standing outside their school, home, workplace, or vehicle

The Temporary Protective Order Process

For you to acquire a temporary protective court order against your abuser, you must present yourself in court and request it. You will then be required to complete the relevant paperwork, elucidating to the judge what happened and why the abuser needs to be restrained. You can request that the judge issue a TRO without notifying your abuser.

However, obtaining a TRO does not only involve going to court and completing the necessary paperwork. Like other court processes, there must be evidence that the temporary protective order is essential. Failing to provide sufficient evidence may lead to the request being turned down. On the other hand, most judges tend to issue a TRO if adequate evidence exists to show its need.

The TRO is in effect and valid until a court hearing is held. This hearing is scheduled 21 days after the judge issues a TRO and aims to determine whether the abuser should be issued with a permanent restraining order. You must serve your abuser the TRO within five days after the court hearing is scheduled. The temporary protective order is only in full effect after you serve it.

During the court hearing, you, as the victim and abuser, will attend. You must present adequate evidence and argue before the court that you need a PRO. You must submit clear, convincing evidence to the judge to win and be granted the PRO. In this case, clear, convincing evidence entails proving that it is highly probable that the harassment or violence will keep happening, thus the need for a PRO.

PROs can remain valid for 1-5 years. For dependent adult abuse and domestic violence restraining orders, the victim must persuade the court, with a preponderance of the evidence, that they need the PRO issues. The “preponderance of the evidence” standard requires the victim (in this case) to demonstrate that it is more likely than not that the abuse or violence will keep happening, thus the reason for seeking the PRO. If a PRO request is granted, the court order will remain fully effective until it expires.

What To Do If There Is a Court-Issued Temporary Protective Order Against You

If a judge has issued a temporary protective court order against you, you will be notified of the order and the set date for a court proceeding. You have twenty days to file your answer to the notice and prepare evidence for the court proceeding. The order contains terms and conditions you must obey. You must respond to the notice early enough to be able to contest the TRO. Upon receiving notice, you should:

Read Through It

Read and understand what the order requires to avoid doing the opposite. Additionally, you want to:

• Check the hearing time and date to know the timeframe for responding to the notice.
• Check what the victim has accused you of doing and their evidence.
• Know your legal rights. You have the legal right to lawyer representation, to respond to the notice, and to be notified of the hearing.

Call a Lawyer

You want to seek legal advice from a lawyer experienced in restraining order defense. They will assist you in building a compelling defense strategy that could lead to positive case results. Review the temporary protective order with your attorney to understand the accusations against you and determine ways to handle the whole matter.

Gather Evidence

With help from your lawyer:

• Gather physical evidence addressing the victim’s allegations, like photos, events, and CCTV footage. You can also collect evidence that could be your alibi, such as GPS coordinates, emails, receipts, or phone records.
• Note down the contact details of anybody who may have witnessed the events regarding the accusations against you.

Attend The Hearing

Failure to attend the scheduled court hearing could lead to the judge issuing a PRO. PROs are more strict than TROs. Showing up at the hearing may be your only opportunity to question the accusations against you, submit your defenses, and narrate your account of events. Ensure you comply with the court’s rules and are punctual to the hearing.

Defending Against The Issuance Of a TRO

Among the ideal ways of defending against a temporary protective order, as the restrained party, is to determine any missing elements the protected party failed to include. These include:

• A statement from them on why they need protection
• A clear evidence of danger
• Proper documentation

If the supposed victim failed to file the appropriate paperwork or could not provide clear evidence of danger, you may have the TRO lifted. For example, before a judge issues a TRO, the victim must demonstrate that they may suffer imminent or irreparable harm without it. Without that evidence, the judge may not grant the order.

As the restrained party, your ideal step is to consult with a skilled lawyer immediately and set up a court proceeding as soon as possible. When you challenge a temporary protective order, it is critical to submit your objections and explain your side of the story. You might wonder why defending against a temporary restraining court order is essential if it only lasts a few weeks. In truth, a protective order can seriously impact your life.

How a TRO Can Affect Your Life

As the restricted party, a TRO prohibits you from contacting or going near the victim or protected party for a given period. In most cases, a TRO can include more requirements, like:

• Specific custody and child support orders
• Relocation to another area
• Prohibition of owning a gun

Under California law, a TRO is only effective after the victim notifies the restrained party unless specific circumstances prevent them from doing so. These circumstances include:

• It seems that irreparable or great injury harm will result upon notice.
• The victim tried to notify the restrained party in good faith but could not do so.

If there is a TRO against you and the protected party did not notify you in advance, they have a maximum of five days from the date the judge issued the TRO or up to forty-eight hours before the hearing to serve it to you. If they fail to do so, the TRO will be rendered invalid.

Whereas the precise punishment will be based on what term of the TRO you violated, such as if you owned a gun after being directed not to or if you went near the protected person, any form of violation may easily turn into a prison term and hefty fines. In addition, defending against the TRO will be much more difficult if you have violated it. That will be confirmation that the victim needs the TRO to protect them, and they might be granted a PRO.

Never Ignore a TRO

After being served a TRO, you may be tempted to violate its terms, mainly if it is unfounded. However, regardless of how ridiculous being restrained sounds, the biggest mistake you can make is not following the TRO terms to the letter.

You want to read the whole order and ensure you do not violate its terms. If the TRO has ordered you to stay away from the victim, that is what you must do, regardless of how absurd it sounds.

A violation of any TRO term or condition could lead to your facing arrest, prosecution, and severe penalties. Additionally, not responding to the temporary restraining order will result in you forfeiting your right to defend yourself, which could lead to a PRO being issued against you for up to five or more years. The PRO could prevent you from possessing or owning a gun and going to given locations and places. Even worse, the PRO will be part of your permanent record.

Criminal Consequences of Violating a Temporary Protective Order

In California, violating a TRO or any other restraining order is deemed a criminal offense. This violation is codified under Section 273.6 of the Penal Code and is often considered a misdemeanor. The criminal consequences of violating a temporary restraining order include imprisonment for not more than one year and a fine of one thousand dollars.

Note, however, that violating a temporary protective order will be considered a wobbler violation if it is your second restraining order conviction and your offense involved a violent act. California law describes a wobbler as an offense a D.A. can prosecute as a felony or misdemeanor based on the case facts and the defendant’s criminal history.

If found criminally liable for a felony, the crime will be punishable by a fine of ten thousand dollars and a prison sentence for a maximum of three years. Also, remember that if you violate another law while disobeying the TRO terms, the judge can find you guilty under both 273.6 PC and the law regulating your subsequent crime.

As for immigration consequences, violating a TRO will, fortunately, not affect your immigration status in many cases. Sometimes, being convicted of a crime will lead to an immigrant defendant being deported (removed) or subjected to inadmissibility. An example is when an immigrant is found criminally liable for an aggravated felony. However, a conviction under 274.6 PC is typically not an aggravated felony.

Also, a conviction for a TRO violation will only negatively impact your firearm rights if it is a felony conviction. Per California law, convicted felons cannot own, possess, or buy a gun. That means the court will strip you of your firearm rights if it finds you criminally liable for a felony TRO violation. There will be no adverse effect on gun rights if it is a misdemeanor violation.

Another good thing is that a TRO does not usually appear during criminal background checks because restraining orders are practically civil matters. However, if you violate a TRO, the citation will appear in criminal background checks.

Lastly, you can have your criminal record expunged if you have been found criminally liable for violating a temporary protective order. An expungement would be possible provided you finished serving your probation or jail term, whichever the court imposed.

Note that a conviction for violating a TRO does not come automatically. The prosecutor must prove beyond a reasonable doubt that you violated the order. To do that, they must demonstrate various facts known as the elements of the crime. These are:

• A court legally issues a TRO
• You knew about the TRO
• You had the present capability to obey the TRO terms
• You willfully broke those terms

Regarding knowledge, the prosecutor must prove you knew that a TRO was issued against you to be convicted. They also must show that you could read the TRO, whether or not you did. Regarding breaking the TRO terms willfully, the prosecutor must prove that you did it intentionally or willingly.

Fighting TRO Violation Accusations

Also, before a court convicts you of violating a temporary protective order, it will allow you to defend yourself against the accusations. You and your lawyer can assert various legal defenses to challenge TRO violation charges under PC 273.6. Common ones are:

The TRO was not Lawful

A judge can only find you criminally liable for violating a court-issued TRO if you disobeyed the terms of a legally issued order. If your lawyer can prove, for example, that there was no legal foundation for a judge to issue the TRO, they can argue that the order was unlawful as a legal defense. This could lead to the judge presiding over your case dropping the charges against you.

You Never Knew the TRO Existed

Remember, one of the critical elements the prosecution must prove for a conviction to occur is that you knew the court issued the TRO against you and you had a chance to read it. If the case circumstances and facts suggest you never knew of the order’s existence, your lawyer can build a defense around your lack of knowledge. Also, this defense can be effective if you demonstrate that you did not have the chance to read the order.

You Never Intended to Violate the Order

The lack of intent to violate the TRO is another effective approach that aims to block one of the key elements necessary for a conviction. That is to say that you must intentionally violate a TRO to be convicted. Consequently, your lawyer can show that, while you might have broken the terms of the TRO against you, you did so accidentally. Proving this will prevent a conviction because even if you knew that a TRO was issued against you and knew its terms, an unintentional violation does not count.

False Accusations

The protected individual may falsely accuse you of contacting them in violation of the order. They might also try to arrange a meeting with you to lure you into violating the conditions of the TRO. These are the various ways the protected party can attempt to falsely accuse you of violating a TRO against them.

A Victim Cannot Violate a TRO

The person whom the TRO protects will not have any legal problems for having contacted their alleged abuser, against whom they sought the TRO. Only the supposed abuser can be arrested and prosecuted for breaking the terms of the TRO.

That said, it is unwise for the protected party to contact you, and it could be worse for you if you fall into their trap. On the other hand, you could use the contact as evidence in future court hearings that the protected party does not fear you, so the TRO is no longer necessary.