Restraining Order Defense in the San Francisco Bay Area

The practice focuses on felony defense and also accepts misdemeanor cases. Restraining order work is a secondary part of it. A restraining order petition often arrives alongside, or ahead of, a criminal investigation.

Domestic violence restraining orders

A domestic violence restraining order issues under the Domestic Violence Prevention Act, beginning at Family Code section 6200.

Abuse under the Act is broader than physical violence. It includes threats, stalking, harassment and disturbing the peace of the other party, which the statute defines to include coercive control.

It carries a firearm prohibition, may order the respondent out of a shared home, may address child custody, and is entered in the statewide restraining and protective order database.

Civil harassment restraining orders

A civil harassment restraining order under Code of Civil Procedure section 527.6 applies where there is no qualifying domestic relationship: a neighbor, a coworker, a former friend, a stranger.

The petitioner must show unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at the petitioner that seriously alarms, annoys or harasses, serves no legitimate purpose, and causes substantial emotional distress.

The standard of proof is clear and convincing evidence, higher than in a domestic violence case.

Elder abuse restraining orders

These petitions are often filed by one family member, a conservator or a public guardian against another relative during a dispute over care, money or a home. The order can last up to five years and may restrain contact, exclude the respondent from a residence and prohibit firearms.

The civil order and the criminal case are separate

A restraining order petition is a civil case. The person asking for the order is the petitioner and the person served is the respondent. No prosecutor is involved, no jury sits, and the order itself is not a criminal conviction.

A criminal case is brought by the district attorney in the name of the People and must be proved beyond a reasonable doubt. The same facts can produce both.

An arrest for corporal injury under Penal Code 273.5 or domestic battery under Penal Code 243(e)(1) can be followed by a separate domestic violence restraining order petition filed by the other party.

Three points connect them. First, anything the respondent says or files in the civil case is under oath and can be used by the prosecutor.

Second, a criminal court can issue its own protective order under Penal Code 136.2, which does not depend on the civil petition and can last up to ten years after a domestic violence conviction.

Third, violating a domestic violence, civil harassment or elder abuse order is a crime under Penal Code 273.6. An intentional and knowing violation is a misdemeanor carrying up to one year in county jail and a $1,000 fine. Repeat violations involving violence or injury can be felonies.

A second conviction within seven years that involves violence or a credible threat of violence can be charged as a felony. Violating a criminal protective order is charged under Penal Code 166(c)(1), a misdemeanor with the same one-year maximum. A second conviction within seven years involving violence or a credible threat of violence can be punished as a felony.

What a hearing involves

This is general information. Every court and every case differs.

The petitioner files a request, usually with a request for a temporary restraining order. A judge can grant the temporary order the same day, without the respondent present, on the petition alone.

The respondent may file a written response before the hearing, on the Judicial Council form for that order type, with declarations and exhibits.

A respondent is entitled to one continuance to prepare, and the temporary order stays in effect until the end of the continued hearing unless the court orders otherwise (Family Code section 245; Code of Civil Procedure section 527.6(o) and (p); Welfare and Institutions Code section 15657.03).

At the hearing, both sides testify under oath. Witnesses can be called and cross-examined. Text messages, photographs, call logs and police reports are commonly offered. The judge may grant the order, deny it, narrow it, or set the case for a longer evidentiary hearing.

A respondent who does not appear should expect the order to issue on the petitioner's evidence alone, for up to five years. Orders after hearing can also reach child custody, housing, immigration status and professional licenses. Those consequences are the reason the hearing deserves preparation.

Contact

Phone: 415-963-1152. Email: marc@peltalaw.com. Office: 1390 Market Street, Suite 200, San Francisco. Appointments by arrangement.

Do not include facts of your case in an email or text. Contacting the office does not create an attorney-client relationship. A conflict check comes before any discussion of facts.

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