Temporary Restraining Order

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 Conversely, however, if you win (i.e., the TRO is rescinded or a new semi-permanent R.O. is not issued), then the petitioner might be forced to pay for all your legal fees and costs pursuant to Code of Civ.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).

Operative State Codes

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:

1. you engaged in a series of acts (a “course” or “pattern” of “conduct”) over some length of time (regardless of how brief) that was intended to stalk, follow or harass the petitioner. Code of Civ. Proc. § 527.6(b)(1);
2. These acts (i.e., the “harassment”) can be as relatively benign as making annoying phone calls or otherwise communicating with the petitioner in an annoying manner. Or they could be as insidious and alarming as actual physical violence or “credible threats” of violence. Code of Civ. Proc. § 527.6(b)(1)-(3);
3. If the alleged harassment did take the form of a criminal threat, then by definition it would have had to have been intended by you to place the petitioner in reasonable fear for his or her own safety of a member of his or her immediate family (child, parent, grandparent or sibling); and
4. Whatever the course of conduct, in order to justify the issuance of a TRO, it must have been of such degree as to cause a reasonable person to suffer mental anguish, and it must have actually caused such emotional distress to the petitioner. Code of Civ. Proc. § 527.6(b)(3).

Defenses to Temporary Restraining Orders

Substantive Defenses

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.

Technical violations

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.