To begin an appeal, you or your attorney must file the Notice of Appeal as soon as possible after the hearing. In California, you have a maximum of 60 days to file your Notice of Appeal, letting the court know that you are appealing the entry of a restraining order against you. You also need to order a copy of the transcript.
A restraining order ruling based on the evidence presented at the original hearing can be appealed, and arguments regarding new circumstances or information will not be considered. Appeals must be based on judicial errors or evidentiary mistakes by the judge or some type of procedural mistake by the judge.
An appellate court may consider the sufficiency of the evidence (whether enough evidence existed for the court to make the conclusion it did). However, an appellate court will generally not consider the credibility of the witnesses in restraining order cases, that decision is left up to the judge – the Court of Appeals only considers whether there was enough evidence, assuming the evidence was accurate, to support the decision.
A common type of appeal that is entirely procedural is an appeal of an order after service of process was contested. If a respondent in a restraining order case was not served, the proper method is to request the matter be dismissed because of a lack of service.
Service of process may have been forged or may have been procedurally inadequate. If a court denies the request for a dismissal of the restraining order after hearing evidence about possible fraud of a proof of service, the chances of prevailing on appeal are reduced. However, the chances of prevailing on appeal are greater if a judge makes a determination about a restraining order dismissal based on an alleged procedural defect with service of the permanent restraining order request on the petitioner.
The reason for this is that an appeals court can evaluate a judge’s procedural decision easily by looking at the court docket, any papers filed by either side, and an analysis of the applicable law. A restraining order appeal that is based on an error concerning a matter where evidence was heard is more difficult. An appeals court hearing a restraining order appeal where witnesses were questioned is not able to see those witnesses, observe their demeanor, and make decisions accordingly. Therefore, appeals courts generally give large amounts of deference to a judge when deciding what testimony to value and believe.
While juries are not permitted in restraining order cases, the reliance on tries of fact (regularly decided by juries) is so strong that the Seventh Amendment to the United States Constitution actually discusses this issue, stating that, “[n]o fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Even though the facts discussed above are accurate true, limits to judicial power with respect to the weight of the evidence exist. In other words, a judge’s ability to determine the credibility of certain evidence in restraining order hearings is not absolute. Judges can make mistakes, and their analysis of factual assertions can be challenged and are sometimes overturned. However, for those factual determinations to be overturned, the decision must be clear and must also be “material” or important to the case.
Factual determinations that are not accurate but that have no effect on the overall outcome are considered “harmless.” All of this being said, judges in restraining order cases make mistakes, fail to hear evidence that is presented, fail to hear evidence that is presented clearly, and fail to provide reliable analysis at times. If you feel that a restraining order judge has not given your evidence even the minimum amount of consideration or weight, you can appeal your restraining order decision on those grounds alone. However, new evidence that should have been submitted in the original restraining order hearing will not be considered on appeal, the judge’s decision is reviewed using the information available to him or her at the time the decision was made.
Which Restraining Orders Can be Appealed
While it is true that a judge’s authority to determine which witness(es) are telling the truth is vast, he or she cannot ignore reality when making that decision. If one restraining order witness’s testimony completely comports with reality and another’s testimony, in contrast, asserts facts that do not adhere to the laws of reality or the physical world, any decision by a trial court judge, no matter the circumstances, can be reviewed. Judges have discretion to decide what facts are true in restraining order cases within reason. Again, a judge’s power is not absolute.
Contesting procedural mistakes made by a judge are much more commonly successful on appeal. Mistakes such as improper service or notice of the papers themselves that is ignored by the court can be a valid reason for a restraining order appeal to be granted.
For example, if a proof of service is filed by the petitioner (the person asking for protection) stating that the respondent was served (personally handed) with the notice of the restraining order hearing and that proof of service is incomplete (whether by clerical error or fraud) the restraining order case should not proceed. If the judge allows the matter to proceed despite a lack of proper service, any decision made by the judge in the actual restraining order hearing can be appealed.
There are limits to evidentiary and procedural reviews. Harmless errors are considered to be exactly that – harmless and inconsequential. For example, if an appellate court determines that a judge in a restraining order matter improperly allowed one side to introduce evidence but also finds that evidence did not affect the outcome of the case, the error by the judge will be ignored. Courts are generally given room to make decisions based on the interpretation of the evidence, and only situations where an abuse of discretion occurred can change the outcome at the appellate level.
Unlike a lower-court level trial (where a judge determines the outcome of a case), in appellate courts, a panel of three judges will collectively examine the documents pertaining to a case, such as transcripts and any available evidence. After carefully reviewing the documents, the panel of judges will make a determination as to whether a restraining order has been wrongfully issued against you.
Appeals of restraining orders are heard in California’s Second District Court of Appeal, located in the Ronald Reagan State Building (300 South Spring Street in Los Angeles). The Second District Court hears all state-based appeals originating in Los Angeles County, Ventura County, Santa Barbara County and San Louis Obispo County.
The court consists of eight divisions, with the first five, seventh and eighth divisions handling only cases originating in Los Angeles Superior Courts. The sixth division hears cases originating in Ventura Superior Courts, Santa Barbara Superior Courts and San Louis Obispo Superior Courts.
An appeal of a restraining order reverses the titles of the parties—the appealing party then becomes the petitioner (originally the respondent) and the protected person becomes the respondent. There are six appellate level judicial districts located throughout California where a petitioner can file an appeal: San Francisco (350 McAllister St., #1042), Los Angeles (300 S. Spring St., 2nd Floor, North Tower), Sacramento (914 Capitol Mall), San Diego (750 B. St., #300), Fresno (2424 Ventura St.), or San Jose (333 W. Santa Clara St., #1060).
Most importantly, the filing of an appeal (like the filing of a request for modification of a restraining order) does not automatically permit the petitioner to violate the standing restraining order in any way. This means the petitioner may not contact the protected person while the appeal is pending. The only point at which the terms of a restraining order may be disobeyed or ignored are when and if the Appellate Court has found grounds for dismissal of the restraining order.
Modifications of Restraining Orders
Requests to modify restraining orders happen frequently. Sometimes, the petitioner changes his or her mind and decides that he or she no longer wants the protection of the court’s order. Modification requests are not appeals and are not filed in the Court of Appeals and are instead filed in the same, local Superior Court that heard the initial restraining order matter.
Respondents in restraining order hearings may also request modifications (in writing) asking the court to alter his or her previous rulings if he or she feels that the conditions imposed were either too harsh or that they were imposed without considering other factors that have been brought to the court’s attention during the request for modification. If a petitioner, on the other hand, is not satisfied with the result, he or she has less options.
If a restraining order was granted and the conditions did not satisfy the petitioner, he or she can and sometimes does request a modification of the restraining order. However, if the restraining order was denied and no orders are in place, there is nothing for a judge to modify. Instead, the petitioner only has two choices. He or she can appeal the restraining order decision that the judge made. Again, this avenue is risky because only mistakes in the law are appealable, a judge’s restraining order decision cannot be appealed simply because the court did not believe a certain witness or gave more weight to the testimony of a witness called by the respondent or the respondent himself or herself.
A judge may also modify any order he or she has made at any time if correcting a clerical error in the judgment. A judge may also modify his or her decision in the restraining order case upon his or her own motion and informing both sides of the decision. There does not have to be a specific reason for this type of modification. It is entirely within discretion of the judge hearing the case.
Further, all restraining orders can be extended, with the approval of a judge, without evidence of additional wrongdoing or harassment. Again, the court must approve the extension. A civil harassment restraining order can be extended for three years without additional evidence. A domestic violence restraining order can be extended for five years. An elder abuse restraining order can be extended for five years as well. Finally, a workplace violence restraining order can be extended for a total of three years without any additional evidence.
Additional Incidents After Restraining Order Denied
While a finding for the respondent in a restraining order matter means that no restraining order will issue based on the current allegation or allegations, it does not mean that the petitioner is permanently barred from requesting another restraining order. When a restraining order is denied, it is only denied based on the facts alleged in the complaint. If additional facts arise after the denial of the restraining order, an appeal is not necessary. The better course of action is to simply request and file accordingly for a new restraining order. Be sure, in that situation, to include past incidents but be very clear that the a prior matter adjudicated those incidents.
There is also a requirement, when requesting a restraining order, to include any related cases and case numbers (the prior case where the order was not granted is the related case). While this method of alleging new facts in a new complaint is the better route when new incidents occur, be careful to not simply file case after case based on new but not sufficiently serious conduct. If matters that you file are denied over and over, you risk being declared a “vexatious litigation,” where you can be barred from filing civil complaints in Superior Court without a judge personally reviewing the claim prior to filing before the matter can be filed and served at all. Further, if you are declared a vexatious litigation, your credibility in further matters can obviously be cast in doubt.