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restraining order

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L

Lindsy

Guest
To I Am Libel:

I may have answered second question to you. Just want to run this by you. In reading order carefully, it states, :"Any party violating this injunction may be subjuect to civil or indirect criminal contempt proceedings,etc." Sounds to me like this is recipricol. What's you opinion?
Thank you once again...
 


I AM ALWAYS LIABLE

Senior Member
Lindsy said:
To I Am Libel:

I may have answered second question to you. Just want to run this by you. In reading order carefully, it states, :"Any party violating this injunction may be subjuect to civil or indirect criminal contempt proceedings,etc." Sounds to me like this is recipricol. What's you opinion?
Thank you once again...
My response:

Please tell me the EXACT orders of the court. For example, "Respondent shall stay at least 100 yards from Petitioner", etc., etc.

I need to know if the terms and orders were, in fact, reciprocal. Are you actually considering taking legal action in this matter?

Also, please use the "Reply" button instead of making separate posts.

IAAL

[Edited by I AM ALWAYS LIABLE on 11-25-2000 at 11:00 AM]
 
L

Lindsy

Guest
Restraining Order

Hi - Following the "any party violating this injunction" it states: Respondent shall not directly or indirectly contact Petitioner in person, by mail, e-mail, fax, telephone, through another person, or in any other matter. Respondent shall not go within 500 feet of: Petitioners current address or any address he/she may move to; Petitioner's current or any subsequect place of employement, or the following other places where Petitioner or Petitioner's minor child go ofter. After this was listed children's places of employment, non of which are minors. When speaking with the Sheriff, he stated that in no means does this mean I have lost my "rights" and that if he was to contact me in any way, I should call 911. The "any party" sounds like it means all of us. He cannot come to where I work, he cannot contact my children nor can anyone in his family do so. Because of where I work, it would be very easy for me to find out if any of them have violated my rights by showing up anywhere on property. As I do not have a lot of money, I do not want to go to court with this unless I am absolutely sure I can win. But, why would it say, "any party", if in fact it just meant Plaintiff?
The "Catch 22" to all this is he has moved, he notified no one of this move, was found in Vioalation of Fl. Statue 475 for not notifying the Dept. of Business and Professional Regulations, which require notification with in 10 days, they found out after 7 months when he was turned in, and logically, how am I to know where I can and cannot go, which leaves me wide open to be set up....
Thanks for you quick response - you have been most helpful..

[Edited by Lindsy on 11-25-2000 at 11:38 AM]
 

I AM ALWAYS LIABLE

Senior Member
Re: Restraining Order

Lindsy said:
Hi - Following the "any party violating this injunction" it states: Respondent shall not directly or indirectly contact Petitioner in person, by mail, e-mail, fax, telephone, through another person, or in any other matter. Respondent shall not go within 500 feet of: Petitioners current address or any address he/she may move to; Petitioner's current or any subsequect place of employement, or the following other places where Petitioner or Petitioner's minor child go ofter. After this was listed children's places of employment, non of which are minors. When speaking with the Sheriff, he stated that in no means does this mean I have lost my "rights" and that if he was to contact me in any way, I should call 911. The "any party" sounds like it means all of us. He cannot come to where I work, he cannot contact my children nor can anyone in his family do so. Because of where I work, it would be very easy for me to find out if any of them have violated my rights by showing up anywhere on property. As I do not have a lot of money, I do not want to go to court with this unless I am absolutely sure I can win. But, why would it say, "any party", if in fact it just meant Plaintiff?
The "Catch 22" to all this is he has moved, he notified no one of this move, was found in Vioalation of Fl. Statue 475 for not notifying the Dept. of Business and Professional Regulations, which require notification with in 10 days, they found out after 7 months when he was turned in, and logically, how am I to know where I can and cannot go, which leaves me wide open to be set up....
Thanks for you quick response - you have been most helpful..

[Edited by Lindsy on 11-25-2000 at 11:38 AM]

My response:

Thank you. This is exactly why I needed this information because it confirms what I thought.

Despite the "any party" language, if the order was, in fact reciprocal (any party), it would NOT have said, "Respondent shall not . . . " Rather, it would have said, "Petitioner and Respondent shall not . . . "

The "any party" language is pre-printed, boilerplate language, meaning the Respondent or Respondents, who are "subject" to the order. As the Petitioner, such person is theoretically needing the protection and does not want the Respondent in their "space". People who petition for a Restraining Order are usually all too happy to stay away on their own, which is the purpose of such orders. The theory goes that it is the Respondent that needs to be told and ordered; that without such orders, will not stay away voluntarily. It is to restrict the Respondent's personal liberties, not the Petitioner's.

Like I said, if the order was reciprocal, it would have been very easy for the court to fashion an order to include both the Petitioner's and Respondent's names, or to leave out the party designations ("Respondent") altogether, by saying, "The parties shall not . . ." But, the court's order is "singular", naming only the Respondent(s).

Thus, for example, it is error to impose mutual restraining orders where only one party has petitioned for an injunction. [Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1060, 278 Cal.Rptr. 530, 532--opposing party must file cross-complaint before permanent injunction hearing](The parties also may stipulate to permanent "mutual" restraining orders.)

In summary, if the Respondent failed to request "mutual" orders from the court, the orders are "one-sided", in favor of the Petitioner.

Kobey v. Morton (1991) 228 Cal.App.3d 1055, 278 Cal.Rptr. 530
[No. D011896. Fourth Dist., Div. One. Feb 27, 1991.]
CHARLOTTE KOBEY, Plaintiff and Appellant, v.
ELAINE MORTON, Defendant and Respondent.
SUMMARY
Plaintiff filed a petition for an injunction under Code Civ. Proc., § 527.6 (injunction against harassment). The trial court entered mutual injunctions against plaintiff and defendant, finding that it had the inherent power to do so in the interest of justice and to keep the peace, even though defendant had not filed a cross-complaint for an injunction against plaintiff.
(Superior Court of San Diego County, No. 619490, Phillip D. Sharp, Judge.)
The Court of Appeal reversed the portion of the trial court's order granting a harassment injunction against plaintiff, and affirmed the order in all other respects. The court held that it was improper for the court to grant an injunction against plaintiff under Code Civ. Proc., § 527.6, since defendant had not filed a cross-complaint alleging grounds for an injunction against plaintiff, as due process required, but had simply stated, in her brief opposing plaintiff's petition, that she did not object to the court granting mutual injunctions on its own motion. The court also held that plaintiff's attorney, by stating at the hearing on the injunction that he could find nothing in the statute authorizing the court to issue an injunction against plaintiff except on its own motion, did not impliedly concede that the court had the inherent power to grant an injunction against plaintiff absent a pleading and without giving her an opportunity to respond to specific charges, especially since plaintiff's attorney, at the hearing, had expressly objected to defendant's failure to file a cross-complaint.
(Opinion by Benke, J., with Wiener, Acting P. J., and Nares, J., concurring.)
HEADNOTES
(1a, 1b) Injunctions §23—Permanent Injunctions—Propriety of Granting Injunction in Absence of Pleading.—In a proceeding for an [Kobey v. Morton (1991) 228 Cal.App.3d 1055, page 1056]injunction prohibiting harassment under Code Civ. Proc., § 527.6 (injunction against harassment), the trial court erred in granting an injunction against plaintiff as well as against defendant, where defendant failed to file a cross-complaint alleging grounds for an injunction against plaintiff, as required by due process, but simply stated, in her brief opposing plaintiff's petition for an injunction, that she had no objection to the court granting mutual injunctions on its own motion. In addition, plaintiff's attorney, by stating at the hearing on the injunction that he could find nothing in the statute authorizing the court to issue an injunction against plaintiff except on the court's own motion, did not impliedly concede that the court had the inherent power to grant an injunction against plaintiff absent a pleading and without giving her notice and an opportunity to respond to specific charges, especially since plaintiff's attorney, at the hearing, had expressly objected to defendant's failure to file a cross-complaint.[See Cal.Jur.3d, Injunctions, § 66; 6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 271.]
(2) Injunctions §7—Injunction Against Harassment—Purpose of Statute.—Code Civ. Proc., § 527.6, which authorizes the court to issue an injunction to prevent harassment, was enacted to protect the individual's right to pursue safety, happiness, and privacy as guaranteed by the California Constitution, and to provide expedited injunctive relief to victims of harassment.
(3) Statutes §29—Construction—Language—Legislative Intent.—In interpreting a statute, the court must ascertain the intent of the Legislature in order to effectuate the purpose of the law; give the statute a reasonable and commonsense interpretation consistent with its apparent purpose; give significance, insofar as possible, to every word or part, harmonizing particular clauses by considering them in the context of the whole; take public policy into account; and give great weight to consistent administrative construction.
COUNSEL
Wittman & Fedynyshn, Michael P. Fedynyshyn and Stephen C. Hinze for Plaintiff and Appellant.
John J. McCabe, Jr., for Defendant and Respondent.[Kobey v. Morton (1991) 228 Cal.App.3d 1055, page 1057]
OPINION
MAJORITY:
BENKE, J.—
Plaintiff Charlotte Kobey appeals an order granting mutual restraining orders against her and defendant Elaine Morton (Code Civ. Proc.,1 § 527.6), contending Morton failed to comply with the procedural requirements for obtaining a harassment injunction. Reversed in part; affirmed in part.
Factual and Procedural Background
On December 21, 1989, Kobey filed a petition for an injunction prohibiting harassment and application for a temporary restraining order against Morton. According to the petition, Kobey's husband had recently died of AIDS, contracted from a blood transfusion, and Morton's husband had recently filed for divorce. On December 16, Morton had a private detective follow her estranged husband and Kobey. On December 19, Morton told her husband she could hardly wait until Kobey moved back into her home, which was being remodeled, so she could "tear [her] head off." Morton told people she had hired Attorney Marvin Mitchelson to file a lawsuit against Kobey, and she and a former wife of Kobey's late husband were going to attempt to claim Kobey was responsible for the Mortons' divorce. Morton falsely said Kobey was an AIDS carrier and accused her of having affairs while her late husband was alive. Morton claimed she had accepted a $2,500 fee from the National Enquirer for a story concerning Kobey, her late husband, and her family. She threatened Kobey's daughter and son and her late husband's two brothers. Kobey was in such fear for her own safety and that of her family that she employed security personnel to escort her to and from her home.
On December 21, 1989, the trial court issued an order to show cause and temporary restraining order against Morton, requiring her to stay at least 100 yards away from Kobey's 2859 Ocean Front Walk home. On December 22, it issued an amended order, providing Morton was allowed to enter and exit her 2869 Ocean Front Walk residence. On December 22, the amended order to show cause and temporary restraining order were personally served on Morton's attorney of record. The hearing was set for January 5, 1990.
On December 28, 1989, Morton's attorney filed a memorandum of points and authorities arguing Kobey's declaration was "riddled with hearsay" and that the true declarant was Morton's husband. Morton's declaration, filed the same date, stated she had "no objections to the Court on its own motion granting restraining orders on a mutual basis."[Kobey v. Morton (1991) 228 Cal.App.3d 1055, page 1058]
Morton's declaration further stated as follows. Morton's husband had filed for dissolution of their marriage eight days after the November 1 death of Kobey's husband. On December 27, Kobey trespassed on Morton's property and attempted to enter 2865 Ocean Front Walk, the use and possession of which Morton's husband had been awarded in their dissolution action on December 15. In addition, Kobey had repeatedly called Morton's home, hanging up or leaving disturbing messages on the answering machine. Kobey arrived uninvited at parties Morton gave on the Memorial Day weekend, the Fourth of July, and New Year's Eve. Kobey also conspired with Morton's husband to get Morton out of the 2869 Ocean Front Walk residence. On November 30, Morton made plans to commit suicide.
On December 28, 1989, Morton's declaration and points and authorities were served on Kobey's attorney. Kobey then filed additional declarations.
At the hearing on January 5, 1990, Kobey objected to mutual restraining orders on the ground Morton had not filed a petition. The court continued the hearing to January 16. On that date, Kobey's attorney argued:
"And Charlotte Kobey objected to the mutual restraining order based on the fact that there was no petition filed by Elaine Morton. And I reviewed the statute, 527.6 .... I really couldn't find anywhere in the statute that would allow—unless the court on its own motion was to grant the mutuality of the restraining orders." The court opined it had the inherent power to grant mutual restraining orders when the interest of justice and keeping the peace required it, even though Morton had not specifically requested this in a petition. The court granted mutual restraining orders.
Discussion
(1a) Kobey contends because Morton failed to file a petition requesting an injunction, the court lacked jurisdiction to grant an injunction against her and her due process rights were violated.
Section 527.6 states in pertinent part:
"(a) A person who has suffered harassment ... may seek ... an injunction prohibiting harassment as provided in this section.
"(b) '[H]arassment' is a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the [Kobey v. Morton (1991) 228 Cal.App.3d 1055, page 1059]plaintiff. 'Course of conduct' is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of 'course of conduct.'
" * * *
"(d) ... The defendant may file a response which explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section. At the hearing, the judge shall receive such testimony as is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. An injunction issued pursuant to this section shall have a duration of not more than three years ...."
(2) Section 527.6 "was enacted 'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.' " (Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 729-730 [255 Cal.Rptr. 453].) Its purpose is "to provide expedited injunctive relief to victims of 'harassment.' " (Id. at p. 730.) (3) In interpreting section 527.6, we must "ascertain the intent of the Legislature in order to effectuate the purpose of the law; ... give the provision ... a reasonable and commonsense interpretation consistent with that apparent purpose; ... give significance, insofar as is possible, to every word or part, harmonizing particular clauses by considering them in the context of the whole; ... take public policy into account; and ... give great weight to consistent administrative construction." (Id. at p. 732.)
(1b) In her declaration, Morton said she had "no objections to the Court on its own motion granting restraining orders on a mutual basis." However, she filed no cross-complaint framing her allegations against Kobey. At the hearing, Kobey's attorney said "I really couldn't find anywhere in the statute that would allow—unless the court on its own motion was to grant the mutuality of the restraining orders." Especially in view of Kobey's express objection at the hearing to the lack of a petition, we do not view this as an implied concession the court had the power to grant mutual orders absent a pleading and without affording Kobey notice and an opportunity to respond to specific charges.
In determining section 527.6 requires the trial court to allow relevant oral testimony, the Schraer court observed:
"Although an initial temporary restraining order may be obtained ex parte on affidavit, the statute requires a more formal procedure for obtaining what approximates a permanent injunction.[Kobey v. Morton (1991) 228 Cal.App.3d 1055, page 1060]
"This more formal procedure is required by due process. The injunction issued under the statute at issue is quite different from the kind of injunction issued under ... section 527, subdivision (a). Although the latter preliminary injunction may be issued on the basis of affidavit alone, the enjoined party still has the safeguard of a full trial on the merits to follow, ...
"In contrast, the procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by ... section 527.6, subdivision (d)." (Schraer v. Berkeley Property Owners' Assn., supra, 207 Cal.App.3d at p. 732, italics in original.)
Similarly, we believe section 527.6 calls for the formality of a cross- complaint before the court imposes on the plaintiff "what approximates a permanent injunction." The court's inherent power does not extend so far as to encompass an order without a petition to serve as a vehicle for that order. (Cf. Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513, 1517 [238 Cal.Rptr. 172] [In a section 527.6 proceeding, neither that statute nor equity gave the court authority to evict the defendant from his dwelling.].) While we applaud the trial court's efforts to keep the peace in the highly emotional situation here, we cannot elevate this goal over the basic requirement of due process.2
The court abused its discretion in imposing mutual restraining orders.
Disposition
The portion of the order granting a harassment injunction against Kobey is reversed. In all other respects the order is affirmed.
Wiener, Acting P. J., and Nares, J., concurred.
A petition for a rehearing was denied March 19, 1991.[page 1061]
FOOTNOTE 1. All statutory references are to the Code of Civil Procedure.
FOOTNOTE 2. Kobey claims Morton has been adjudged guilty of five counts of contempt for violating the harassment injunction. Even assuming relevance to the issue raised here, these matters are not part of the record before us.


IAAL
 
L

Lindsy

Guest
Restraining Order

Thank you once again. Not being a "legal eagle" I have read what you sent me and am trying to digest it. If you could just go down to my last paragraph starting with "Catch 22", how do I handle this part of it, and let's not forget the only reason he got this order in the first place was because of threats made against me and my family if I showed up in court. That is why the Sheriff when he heard that tape, told me I have in no way lost my rights. They cannot in turn harass or terrorize me. Do you think it would be feasible for me to send a letter and copy of the tape directly to the judge who handled this in the first place? I've been told, as you also told me, "the petitioner needs the protection", hence the order, however that a petitioner who makes contact or goes to my place of employment obviously has no fear of me. Hence, the order is a "sham". I hope this makes sense, but I'm trying to find out how I avoid someone when I no longer know where they are? Aren't I being put in the position of being set up here?
 
L

Lindsy

Guest
To I Am Libel:

Don't know if you got my last and I promise final question to you so here goes! Would it be feasible for me to write directly to the Judge who handled the case, sending along with it the copy of the threatening phone call which kept me from showing up at the hearing? Not necessarily to remove the order, I don't care if it stays in place, but to at least make sure that it works both ways so that I am not the one being harassed now. Thanks once again.....
 

I AM ALWAYS LIABLE

Senior Member
Lindsy said:
To I Am Libel:

Don't know if you got my last and I promise final question to you so here goes! Would it be feasible for me to write directly to the Judge who handled the case, sending along with it the copy of the threatening phone call which kept me from showing up at the hearing? Not necessarily to remove the order, I don't care if it stays in place, but to at least make sure that it works both ways so that I am not the one being harassed now. Thanks once again.....

My response:

I'm sorry I haven't gotten to your previous post. I've been really busy.

But, very quickly, please understand that judges do not read "letters" from litigants. Judges read Pleadings, only, and such pleadings must give Notice to the other party. That's why I said:

"Get your evidence together, and file a Request to Dismiss the Restraining Order or file your own, separate, Petition for Restraining Order to keep this person away from you - - if that's what you want."

Please, if the situation is causing you problems, you really need to get an attorney.

IAAL
 
L

Lindsy

Guest
I Am Liable

Thank you very much for the time you have taken with me. I will take everything you have said under advisement. Hope you have a Happy Holiday Season......
 

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