Restraining Order Question Hearing / Proper serve?

[eze5]

I am in California. The Restraining Order was filed in Riverside County.

I will try to keep this short and simple.

An ex-renter of my mother's. Filed a restraining order against my mother, my fiancee, a mutual friend, and me.

He had a friend of his serve my mother with all four of our restraining orders for the hearing. He never properly identified my mother (The court clerk even says my mother was illegally served).

My fiancee and I live two hours from my mother. And the mutual friend no longer lives in California. Nor has my he or my fiancee used my mothers address as their legal address. EVER.

Speed things up. The hearing happened and this ex-tenant was granted a 6 month restraining order against my mother and a year against me.(I called to find out) (He put his hands on my mother and I went after him that's why)

For the restraining order to actually go into effect? Doesn't a real processor and / or sheriff have to serve my mother and I for the restraining order to actually be effective? (Not that it matters we plan to stay away from him)

And if the above is true, for the time it takes to serve my mother and I will the dates of the restraining order be extended to account for the time it took to be served? Or will the dates stay at where the judge granted them?


In theory. If my mother no longer spoke to me and decided to never call and tell me about this paperwork. How am I to legally have known? How can this even be allowed? So if I happen to visit my mother (small town where she and the renter live. - No stop light, one road highway type of town) and I happen to be in the same place as him, but I don't even know this restraining order exist. How can I break the order if I don't know about it, nor was never served?

I tried to make it short. Sorry just wanted to be clear.

Thank you.

 

[sandyclaus]

I am in California. The Restraining Order was filed in Riverside County.

I will try to keep this short and simple.

An ex-renter of my mother's. Filed a restraining order against my mother, my fiancee, a mutual friend, and me.

He had a friend of his serve my mother with all four of our restraining orders for the hearing. He never properly identified my mother (The court clerk even says my mother was illegally served).

My fiancee and I live two hours from my mother. And the mutual friend no longer lives in California. Nor has my he or my fiancee used my mothers address as their legal address. EVER.

Speed things up. The hearing happened and this ex-tenant was granted a 6 month restraining order against my mother and a year against me.(I called to find out) (He put his hands on my mother and I went after him that's why)

For the restraining order to actually go into effect? Doesn't a real processor and / or sheriff have to serve my mother and I for the restraining order to actually be effective? (Not that it matters we plan to stay away from him)

And if the above is true, for the time it takes to serve my mother and I will the dates of the restraining order be extended to account for the time it took to be served? Or will the dates stay at where the judge granted them?


In theory. If my mother no longer spoke to me and decided to never call and tell me about this paperwork. How am I to legally have known? How can this even be allowed? So if I happen to visit my mother (small town where she and the renter live. - No stop light, one road highway type of town) and I happen to be in the same place as him, but I don't even know this restraining order exist. How can I break the order if I don't know about it, nor was never served?

I tried to make it short. Sorry just wanted to be clear.

Thank you.

If the above is true, then neither your mother or you decided to appear for the hearing, or have an attorney appear on your behalf, or you challenge the service of the temporary orders. Your mother didn't say anything about how she was served your papers, and I'll bet if you check the court record, that friend of the ex-tenant probably claimed that he personally served both of you on the proof of service he filed with the court.

Absent someone to speak up and tell the court there's a problem, they go on what they have in front of them. Since the two of you never showed up, the court only got one side of the story and decided that there was justification to issue the permanent order for the 6 month period against you. The only way to protect yourself would have been to file a challenge to service based on your mother telling you that you were allegedly served, doing so prior to the hearing. If you had done that successfully, you could have kept the court from making a decision on YOUR order until such time as the plaintiff PROPERLY served you.

At this point, all you can do is file a motion now to ask that the restraining order be dropped against you. As for your mother, she apparently was the ONLY one properly served, and decided not to appear anyway. Given that she had proper notice and an opportunity to challenge the request for permanent orders, it's her own fault she chose not to show up to try to defend herself.

 

[eze5]

I appreciate the response.

The friend that served my mother claimed he served all 4 people. By handing my mother the documents.

How is this legal??????

In theory. If my mother never spoke to again and was handed these documents. How the hell can the court even issue a restraining order knowing how easy it is for someone to falsify that they were served?

Reality, I was never served. It a falsified.

I don't have the time nor the money to respond. I can't afford a lawyer just because he blatantly lied.

How is this fair? And is there anything I can do to fight it that doesn't require hiring a lawyer and wasting tons of time because some guy lied?

Thank you.


And sorry if you answered this, but since the judge issued the hearing. Does the protective order still have to be served to me anyway? Just because they was a court hearing doesn't mean I know the outcome? It's not a guaranteed default victory for him. And even if it is, how can the courts expect every citizen to know the exact break down of the laws?

 

[eze5]

Seriously.... like how can the courts even go off someone saying they served someone if they are legally a processor ?


I mean seriously... if my mother hated me and never spoke to me.

How would I ever even know about this? And this goes on record if I ever apply to a job... give me a break. Something cant be right.

 

[CdwJava]

He had a friend of his serve my mother with all four of our restraining orders for the hearing. He never properly identified my mother (The court clerk even says my mother was illegally served).

It is still posible to serve a Jane Doe. But, if mom doesn't violate the order, then it will be a non-issue for her if she was not ever identified by name.

Speed things up. The hearing happened and this ex-tenant was granted a 6 month restraining order against my mother and a year against me.(I called to find out)

You were all lucky. The usual term is three years. And, apparently the judge was okay with service and the identification of your mom.

I take it none of the restrained parties showed in court? Since you had to call to find out, I'm guessing not. That's bad for you as you lost out on your chance to contest the order.

For the restraining order to actually go into effect? Doesn't a real processor and / or sheriff have to serve my mother and I for the restraining order to actually be effective? (Not that it matters we plan to stay away from him)

No, you just have to be lawfully served. It des not have to be by a registered process server, a deputy or a deputy marshall.

And if the above is true, for the time it takes to serve my mother and I will the dates of the restraining order be extended to account for the time it took to be served? Or will the dates stay at where the judge granted them?

The order will have a termination date on it and that will not change.

In theory. If my mother no longer spoke to me and decided to never call and tell me about this paperwork. How am I to legally have known? How can this even be allowed?

The order is not valid absent proof of service. Apparently proof of service was provided to the court. If you were never served and was unaware of the court hearing, you can always attempt to get a new hearing to challenge the order.

 

[eze5]

So basically. If my mother never spoke to me again. I get a restraining order put on my record without me knowing, because some guy lied about it?

Love the court system....

This can't be legal....

 

[eze5]

And just because someone doesn't show up to a court hearing doesn't mean that a default judgement is guaranteed... how is the party that doesn't show up suppose to know of the outcome?

Let me guess... not the courts problem?

 

[Proserpina]

And just because someone doesn't show up to a court hearing doesn't mean that a default judgement is guaranteed... how is the party that doesn't show up suppose to know of the outcome?

Let me guess... not the courts problem?

Exactly.

Not the court's problem. Not showing up actually indicates to the court court that (assuming service has been perfected) you have very little respect for the court and its procedures. Do that at your own risk.

 

[eze5]

So, the courts believe that just because someone "said" they served someone. That they believe them.


So what am I to do now? I can't afford a lawyer.

 

[sandyclaus]

If there are no objections to a request for a permanent restraining order, and if the judge is convinced that it is justified by what the requestor testifies, a default can be had very easily.

You KNEW your mother had been served. You also KNEW that they had served papers to her with YOUR name on them. You also KNEW that the process server had claimed to have served you personally. You could easily have challenged the service if you had taken the proper steps BEFORE the hearing to do so. Instead, you just ignored that and figured that if you didn't show up, they couldn't grant the permanent orders against you. YOU WERE WRONG. You took your chances, and since the plaintiff had filed proofs of service saying you were served that went unquestioned and unchallenged, that's all the court had to go on. It's your OWN fault for not taking steps to protect yourself from that happening.

As has already been suggested twice, you can certainly ask the court to dismiss the restraining order based on faulty service.

 

[eze5]

I didn't have the time nor the money to even get to the court. (Im not mad at you guys just annoyed that people can easily lie and get away with it, in a court system)

 

[eze5]

Serious question.

If my mother hated me and I never knew about this hearing. How can someone legally be bound to this all just because one random dude says he served me?

 

[Proserpina]

I didn't have the time nor the money to even get to the court. (Im not mad at you guys just annoyed that people can easily lie and get away with it, in a court system)

You had the chance to challenge the order.

You CHOSE not to do so. That's not the problem nor the fault of the courts.

Sure, you can try to claim that service was not perfected. I wouldn't hold my breath though if I were you.

 

[sandyclaus]

If you can't afford to have an attorney do it for you, then start reading:
http://www.ehow.com/how_6545329_vacate-restraining-order.html

Note that some counties do have a specific form, whereas others will require an actual motion to be prepared. Since I don't know what county you live in, I can't tell you whether or not yours has a fill-in form. I CAN tell you that I found one online for San Diego County on their website:
http://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/FAMILYANDCHILDRENFORMS/D001.PDF

If you have to prepare a motion, then an attorney can probably just do the documents for you for a lot less than actually representing you. You can also search for sample documents in Google to see if there's one you can build on to use.

I know it sucks, but in all honesty, you had both time and opportunity to challenge the permanent restraining order based on not getting properly served. You took the chance, and you lost. Now you have to play "clean up".

 

[eze5]

Last question and I'll stop.

If it was just me.. and this random person said they served me, but really didn't.

How and why can this go on my record, solely based on what one man said?

So later in life when I am going to get a job and this pops up and I happened to never know about it until 2-3 years later.

I just don't understand how this so can easily get forged...