Have you been ARRESTED or contacted by the Police, a Detective, FBI, or CPS?
The only way to extend a domestic violence emergency protective order (“EPO”) beyond its five-court-days or seven-calendar-days’ duration (whichever is earliest) is to rush into court on an emergency (“ex parte”) basis and obtain a temporary restraining order (more commonly called a “TRO”). However, a purported victim (known as a “petitioner”) doesn’t need to first get an EPO before getting a TRO against you.
The process for a petitioner to obtain a TRO is surprisingly simple. (Conversely, however, the process to defend yourself against one is quite complicated and highly technical, which is why you should always be represented by a competent, experienced attorney.) All the petitioner needs to do is fill out a standard form then tell the judge why you pose an immediate threat. Indeed, the law does not even require the purported victim to give you advance notice of the TRO hearing.
See California Code of Civil Procedure section 527.6(d).
The legal standard/threshold is so minimal – a showing that significant or irreversible harm will come to the purported victim, that unless you’re adequately defended, you will almost certainly have one issued against you.
In contrast to emergency protective orders, no third party (e.g., a police officer or sheriff’s deputy) can request the TRO on your behalf. Also unlike an EPO, a judge cannot automatically issue the protection order, but can only do so after a hearing (but again, even if you’re not present).
Finally, unlike with an EPO, the relationship between the “protected party” and the “restrained party” does not need to be of a domestic nature – i.e., no close, personal or biological relationship need be established for a TRO to issue.
Possible Terms Included in a TRO
A temporary restraining order could include any or even all of the following prohibitions in regard to the protected party (which could also include a close family member):
You should know that even repeated, obscene crank calls to a particular individual would not only fall within this category, but are explicitly criminalized in California Penal Code section 653ml. In other words, those same calls that launched comedian Adam Sandler’s career as a seventeen-year-old in New York City could very well have landed him in juvenile detention in Los Angeles.
Duration of a TRO
TROs last between twenty and twenty-five days, but are typically set for twenty-one days, which is when the next court hearing will be scheduled. Code of Civil Procedure section 527.6(f)&(g). At that hearing, the judge will decide whether to make the restraining or protection order much more permanent (as long as a decade in the most extreme cases). C.C.P. § 527.6(j). The potentially harsh duration of these restraining orders is probably the number one reason you should not try to represent yourself during this process.
Keep in mind, however, that if an order was extended against you – including for years – your lawyer can still go into court at any point to have it rescinded or modified (assuming, of course, he or she has evidence to convince the court to do so).
At the next hearing (which does require advance notice to you), if the judge finds good cause to extend the TRO, or even if the TRO was initially denied at the first hearing but sufficient evidence was presented at the second hearing, he or she could extend it for many months or even years, depending on the circumstances. This is commonly referred to as an “order after hearing”.
The defenses discussed below (as well as other viable defenses) should be presented by your attorney (again, due to their complicated, technical, and procedural nature) at either the TRO hearing itself – assuming you received prior notice – or at the second hearing.
At the latter, he or she will be able to file an opposition brief/motion in which you are allowed to explain, excuse, justify or deny the accusations against you. In fact, your attorney – assuming it’s merited – could even file a “cross-petition” against your accuser, alleging the same or similar acts of harassment or abuse (which is not uncommon in domestic relationships). Code of Civ. Proc. § 527.6(h).
During the second hearing, the judge will review evidence and hear live testimony presented by both parties, then make a decision. Unlike the significantly lower threshold required to issue a restraining order at the TRO hearing (i.e., reasonable grounds, credible evidence, good cause, etc.), the judge must now be swayed by a much higher standard – specifically, “clear and convincing evidence” – before either extending the TRO or issuing a “new” semi-permanent R.O.
Alternatively, if a TRO was initially issued, at the second hearing the court could rescind or modify it.
Finally, here’s an unpleasant surprise: if the protected party prevails at the second hearing and is represented by counsel, you might have to pay for his or her legal fees. Conversely, however, if you win (i.e., the TRO is rescinded or a new semi-permanent R.O. is not issued), then the petitioner might be forced to pay for all your legal fees and costs pursuant to Code of Civ. Proc. § 527.6(s).
The key procedural law in California law for TROs is Code of Civil Procedure section 527.6. It states in relevant part that anyone who (allegedly) suffers harassment as a result of your words or actions can obtain a TRO against you if he or she can establish that:
The petitioner couldn’t take a (bad?) joke or was otherwise overly sensitive
If your threat was actually intended as a joke, then you could not have had the required mindset (mens rea or “specific intent”) to instill fear in the petitioner. Similarly, even if the joke – or, for that matter, a poorly made threat – did frighten the petitioner, if no reasonable person would have been frightened by it, then that cannot serve as a basis for a TRO.
For example, if you jumped out of the bushes while wearing a clown mask and laughing maniacally, and your sister-in-law fainted because she has a bizarre, pathological fear of clowns, you could not (or at least should not) be subject to a TRO.
The petitioner did not actually suffer emotional distress
Conversely, even if you intentionally threatened the petitioner with harm – and even intended him or her to be frightened – and even if a reasonable person would have been frightened, if the petitioner knew you never acted on your threats and, therefore, was utterly unafraid of you, then you would (or should) not be subjected to a TRO.
Self-defense or defense of others
One of the actions proscribed by Code of Civ. Proc. § 527.6 is “unlawful violence” (included in the statute’s definition of “harassment” – C.C.P. § 527.6(b)(3)), which encompasses any assault, battery or stalking of the protected person. (California’s Stalking statute is codified at Penal Code section 646.9.)
However, if you attacked or followed the purported victim out of a reasonable fear that he or she meant to do you or another person harm, so long as you didn’t go beyond what the situation called for, you would have a strong defense.
The following technical violations would prevent a TRO or, if it’s already been issued, nullify it at the second hearing for the possible semi-permanent injunction.
Only one previous violent act or threat has been alleged by the petitioner
As discussed above, the basis for a TRO must include a convincing allegation that you had engaged in a course of conduct. Therefore, if the petitioner claims you abused, harassed or threatened him or her on only one prior occasion – or if the judge issued the TRO based only on that single allegation – then your lawyer should be able to have it voided at the second hearing. Code of Civ. Proc. § 527.6(b)(1).
Similarly, if you shouted threats at the petitioner, drove off, then returned minutes later to make additional threats, your defense counsel should be able to successfully argue that this was, in fact, a single prolonged incident and, therefore, cannot justify a TRO.
You were engaging in actions that are protected by the United States or California Constitutions
Any activities that are Constitutionally protected cannot serve as the basis for a TRO issuance. For example, if you were repeatedly picketing in front the mayor’s mansion in Hancock Park/Windsor Square to protest the incessant murders of innocent Black men by police, then the mayor is precluded from seeking to enjoin you from that activity – including by requesting a TRO. In other words, not only were you not “stalking” the mayor, but you exercising your Constitutional right to free speech, free assembly, and so forth. Code of Civ. Proc. § 527.6(b)(1).
Similarly, any activities that are related to organized labor unions also cannot support a TRO.
You were engaged in legitimate activities
Not unlike Constitutionally protected activities, legitimate actions also serve as an absolute defense to a TRO. C.C.P. § 527.6(b)(1)&(2). For example, suppose you were working as a volunteer for the Democratic National Party and therefore were repeatedly knocking on doors to speak to residents in an all-Republican neighborhood.
But after “bothering” an ardent Trump supporter one too many times, she goes into court to obtain a TRO against you. In that particular situation, the judge would (or, again, at least should) deny the request because you only annoyed or offended her while performing legitimate duties.
In June 2018, local resident Micaela Jiminez allegedly showed up to rapper A$AP Rocky’s estate in the Hollywood Hills, slugged his assistant in the face, burst into Rocky’s home, dashed up a flight of stairs to the master bedroom, and surprised him. According to Rocky, he leapt up from his bed and was forced to fend off Jiminez’s sexual advances as she tore a pearl necklace from his throat. At that point, his bodyguards arrived and forcibly removed her from the premises. (Although Rocky filed a complaint with LAPD, it’s not clear if Jiminez was actually arrested at that time.)
Six months later, in December 2018, Rocky (who’s real name is Rakim A. N. Mayers) was rapping at an L.A. club when Jiminez allegedly tackled him offstage on the dance floor. Later that same night, Rocky claims that moments after he slipped into the back seat of his limo to go home, Jiminez opened the door and landed on his lap. Once again, Rocky claims he was terrified.
Rocky also alleges that several other disturbing incidents occurred, including his discovery of Jiminez sleeping in her car outside of his mansion. Also, in April 2020, she allegedly appeared at his house and told his security staff that she was married to him.
In June 2020, Jiminez allegedly returned to his house yet again (which begs the question as to why Rocky didn’t simply move), and insisted to security that she wanted to see him. When they refused her demand, she screamed profanities at them then left – but not before allegedly dousing his car with ink (which also begs the question as to why his vehicle was parked outside on the street).
Finally, on July 16, 2020 – after 24 months of this alleged stalking – Rocky went to court and obtained a TRO against Jiminez, whom he explained to the judge had taken extraordinary measures to glean information from people who know him, including friends and family members, about his whereabouts and movements. See tmz.com.
On May 11, 2020, a Los Angeles Superior Court judge granted singer Billie Eilish’s petition for a TRO against a man named Prenell Rosseau which required Rosseau to stay at least two hundreds away from Eilish, her mother, and her father. A follow-up hearing was scheduled twenty-one days later (June 1st). As Eilish explained to the court during the TRO hearing, Rosseau had repeatedly appeared at her LA home during the previous week (without a COVID-19 mask, she added).
According to Eilish, the first time Rosseau showed up, he rang the doorbell at which time her father spoke to him through an intercom, asking him what he wanted. Rosseau reportedly said he was looking for Eilish but left after her father told him she didn’t live there.
Later that night, however, Rosseau allegedly returned, sat down by the front door, and began reading a novel – all while occasionally speaking to himself. Even after private security guards forced him to leave, he once again allegedly returned – this time to go to sleep in her front yard. Once again, he was told to leave.
Sure enough, the next morning he allegedly returned (supposedly the fourth time in 24 hours) and tried to open the locked front door. Rosseau allegedly showed up three more times and was (finally) “arrested” twice by LAPD, who supposedly told Eilish that since trespassing was not a violent crime, due to the LA courts’ zero bail schedule for non-violent offenders, they could only cite and release him. See tmz.com.
Nicole Richie (socialite, Lionel Richie’s adopted daughter, and Paris Hilton’s former BFF)
On October 5, 2009, designer, sometime-actress (reality TV show The Simple Life), and wife of singer Joel Madden, Nicole Richie, was driving with members of her family in L.A. when they were allegedly pounced upon by two paparazzi (Eduardo Arrivabene and Ivon Miguel), forcing her to crash her vehicle. As she later testified at the TRO hearing (which for some inexplicable reason did not occur until twenty-five days later on October 30th), the experience was traumatizing for her, and placed her in fear for her safety, and for that of her then-infant child.
Disregarding the paparrazi’s arguments that their activities were protected by the First Amendment of the U.S. Constitution, Los Angeles Superior Court judge David S. Cunningham III issued a TRO against both men based on credible evidence of stalking, thereby prohibiting them from coming within one hundred feet of her two young children. The second hearing was scheduled for November 16, 2009. See latimes.com.
The Los Angeles Criminal Defense Attorney Law Firm
Over the last decade and a half (as of 2020), LADALF managing attorney Ninaz Saffari has personally handled dozens of TRO hearings – often with great success – on behalf of her clients. Therefore, she is intimately familiar and highly experienced in the technical complexities involved – both at the TRO hearing & stage, and at the subsequent “semi-permanent” restraining order hearing.