What is the burden of proof for a restraining order in California?
Asked by: Florence Lockman | Last update: April 19, 2025Score: 4.2/5 (2 votes)
The standard of proof for continuing the restraining order, making it non-temporary, is by clear and convincing evidence.
Why would a judge deny a restraining order in California?
If a judge is unwilling to grant the TRO, that essentially means that the petitioner has not made a reasonable primafacie case of harassment or abuse, and does not bode well for the petitioner's case.
What is the burden of proof for a civil harassment restraining order in California?
Be prepared to explain clearly and concisely why the court should grant your request. During the hearing, it is your burden to prove to the court by “clear and convincing evidence” the violence, threats, stalking, or harassment you claim.
What warrants a restraining order in California?
- causes or attempts to cause you physical injury;
- sexually assaults you;
- makes you fear that you or another person is in danger of immediate, serious physical injury;
- molests, attacks, batters, or strikes you;
- stalks you;
How do I prove harassment in California?
- Notes with details of every harassing incident, including when and how each incident occurred;
- Contact information for witnesses to the harassment;
- Wage records;
- Correspondence from your employer or harasser;
- Personnel records;
Proof Needed for a Restraining Order
What proof do you need for a restraining order in California?
Anyone seeking such an order must be prepared to present some evidence in addition to their own written statements and testimony in Court. This standard means that the Court must see photographs, text messages, e-mails or any other physical evidence that can support claims made by the Petitioner.
Can I sue for harassment emotional distress in California?
In California, you can sue for emotional distress caused by someone else's actions. Negligent infliction occurs when harm is caused accidentally. Intentional infliction is when harm is caused deliberately or through extreme recklessness.
What must a restraining order contain?
The specific elements you need to prove to get a restraining order vary from state to state, but in general, you need to show: A specific instance or instances of abuse or harassment (such as sexual assault by an intimate partner) The threat of violence or of further abusive behavior or harassment.
What is clear and convincing evidence for restraining order in California?
To get a restraining order, you will need to provide a preponderance of evidence. Clear and convincing evidence: If the plaintiff can show that what they are saying is “highly and substantially more likely to be true than untrue,” the burden of proof described as clear and convincing evidence has been met.
Why would a restraining order be dismissed in California?
Reasons for Cancellation
Changed Behavior or Counseling: If the restrained person has undergone counseling, treatment, or has shown long-term changes in behavior, the protected party may feel the order is no longer necessary.
How to defend yourself against a restraining order in California?
- Claim False Allegations. If you can demonstrate that the claims made against you are fabricated or exaggerated, you could counter the order. ...
- Claim a Lack of Evidence. ...
- Present Counter Evidence. ...
- Claim Misunderstandings or Miscommunications.
What is the burden of proof in a harassment case?
This burden of proof requires the plaintiff to leverage evidence and witness testimony that shows the harassment more likely occurred than not. This is a lower standard of proof than beyond a reasonable doubt, but it can still be more challenging to meet this burden of proof than you may realize.
Can I sue someone for filing a false restraining order in California?
Legal Repercussions And Civil Liability
Apart from criminal charges, individuals who file false orders of protection may also face legal repercussions in civil courts. The victim of the false claim may file a civil lawsuit seeking damages for harm caused by the false allegations.
Why would a judge dismiss a restraining order?
These factors include: If there were any additional crimes committed by the restrained person against someone. Completion of either domestic violence classes or sex offender treatment. The amount of time that has passed since the restraining order went into effect.
Can a restraining order be valid if never served in California?
Without service, the court can only grant you a temporary restraining order. Service can be a hard step to complete and make take multiple tries. At your court date, the judge can give you more time, if you need it.
What to say in court for a restraining order?
“I would consider any contact in the future to be a violation.” Tell the court why you would like the temporary restraining order injunction. Examples: “I want this injunction because…” “I fear for my child's safety.” “My child's life is in danger, I am afraid he or she will be hurt…”
How to win a restraining order hearing in California?
- Properly Organize the Evidence. Seasoned lawyers expertly organize evidence such as photos and text messages between you and the “protected person” to support your story. ...
- Prepare for the Restraining Order Hearing. ...
- Present Your Case at the Hearing. ...
- Gather Third-Party Witnesses.
What is the best evidence rule in California?
The best evidence rule is a rule of evidence that requires that original documents be used to prove the contents of writing, photograph or the like unless it is unavailable. If unavailable, then a duplicate may be used under the current evidence rules.
What is an example of clear and convincing evidence?
An example of clear and convincing evidence might be a document that contains a signature from a person who is accused of fraud, and the signature is verified by a handwriting expert as authentic.
How much does a restraining order cost in California?
If required, pay a filing fee
If you are not alleging violence, stalking or threats of violence or if you did not ask for a fee waiver, you will need to pay $435-$450 to the clerk when you file your forms. Go back to the first step to learn about how to ask to pay no filing fees. What if my fee waiver is denied?
Can someone get a restraining order without you knowing?
Myth: Once the judge approves the RO, the abuser must stay away immediately. Fact: RO's are NOT in effect until the abuser is notified. An abuser will not know there is a restraining order against them until the police serve them the paperwork. That could happen that same day or might not happen for several days.
How fast can you get a restraining order in California?
In most instances, if your request for a temporary restraining order is granted, you will receive your temporary restraining order the same day.
How do I prove emotional distress?
Intentional Infliction of Emotional Distress
Plaintiffs must prove that the defendant's actions were egregious, done with reckless disregard, or intended to cause distress. Plaintiffs must also demonstrate that the event directly resulted in their emotional suffering and other losses.
What is legally considered harassment in California?
(1) “Harassment” means a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person and that serves no legitimate purpose.
How much can you claim for emotional distress in California?
Average Compensation for Emotional Distress in California
The compensation for emotional distress can vary depending on the factors mentioned above, but on average, emotional distress settlements in California typically range from $30,000 to $250,000.