A restraining order can feel like a sudden, life-altering blow, disrupting your home life and professional environment. However, the ruling of a court is not always the last word. You have the right to appeal against a restraining order against you, either because you believe it was wrongly issued or is no longer necessary. It is not a simple retrial but a complex legal process with strict deadlines and specific success criteria. Understanding the legal process is crucial to navigating this challenging path and seeking a favorable outcome.
What is a Restraining Order in California?
A restraining order is a civil court order that helps an individual, their family, or household members against different kinds of harm, including abuse, threats, and harassment. These legal orders prevent the restrained person from performing specific actions, including contacting or approaching the person within a particular distance or even harassing the protected individual. Some common types are:
- Domestic Violence Restraining Orders (DVROs) — Applies to individuals in a close relationship
- Civil Harassment Restraining Orders — Applies to non-domestic issues
- Elder Abuse Restraining Orders — This seeks to protect persons aged 65 and above.
A restraining order can have long-term consequences. Once issued, as the restrained person:
- You will be prohibited from owning or possessing firearms
- Your right to visit your children may be significantly affected
- The very fact of the order becomes a part of a public court record that can be used against you when seeking employment or housing
Appeal vs. Motion to Modify or Terminate
When a restraining order is issued, it is crucial to know the different legal options that can be taken to appeal or change the conditions of the restraining order:
- An appeal
- Motion to modify or dismiss the order
Although both seek to alter the result, they work under different legal frameworks and court systems.
A request to amend or dissolve a restraining order is made in the same trial court that issued the restraining order. This type of motion is usually based on a change in circumstances, that is, since the initial order was issued, there has been a considerable change in the facts or situation that necessitates its modification or cancellation. For example, if the protected party no longer feels threatened, or when the person under restraint can prove that he/she has undergone anger management successfully, the same can be used to change the terms.
In contrast, an appeal of a restraining order is directed to a higher court, specifically, the appellate court, and is quite different. An appeal is not founded on the changed circumstances, but on a claim of legal error made by the trial court judge in the initial proceedings. It can be in the form of:
- A wrong interpretation of the law
- Admission or rejection of evidence
- Insufficient substantial evidence to justify the initial decision
Thus, a motion to modify attempts to change the order due to new circumstances, whereas an appeal questions the lawfulness and rightness of the initial judgment, intending to have it overruled in its entirety.
Grounds for Appealing a Restraining Order
In California, the only way to successfully appeal a restraining order is by showing that the trial court made a legal error, instead of showing that you disagree with the actual decision. An appeal is not an opportunity to re-argue the facts or present new evidence not previously presented at the initial hearing. The appellate court looks at the trial court record to see whether the court made a legal error. As a rule, the appeal can be supported by three main grounds, each needing a specific legal argument, namely:
Legal Error
This ground suggests that the judge improperly applied the law to the facts of your case. It can be through misinterpreting a statute that defines what constitutes “abuse” under the domestic violence prevention act or misapplying procedural rules during the hearing.
For example, a judge issued a permanent restraining order based on a single incident that does not meet the legal definition of abuse. The appellate court would assess whether the judge correctly interpreted and applied the relevant law.
Abuse of Discretion
Abuse of discretion is where the judge's decision was irrational, arbitrary, or so unreasonable as to constitute an injustice. Although the trial judge is given broad discretion in making rulings, this is not unlimited.
For example, an abuse of discretion may occur where a judge denies a reasonable request to continue without a valid reason, depriving a party of the ability to present substantial evidence, or where the terms of the restraining order are overly broad and punitive without justification.
Insufficient Evidence Supporting The Restraining Order
Under this reason, your attorney will assert that there was insufficient credible, admissible evidence presented during the original hearing to support the findings made by the judge or the granting of the order. It is not about reweighing the evidence or favoring the testimony of one side over the other by the appellate court. Instead, the court will look at the trial transcript to determine whether the judge had reasonable grounds in the evidence presented to make the decision.
If a restraining order was granted with no concrete allegations but more vague allegations without supporting evidence and testimony, this restraining order could be objected to based on a lack of sufficient evidence.
However, just because a person disagrees with the ruling of the judge or wants to provide new evidence that he/she forgot to provide during the initial hearing, it cannot be a reason to appeal. The appellate court’s role is to check the legal soundness of the trial court process, not to order a new trial.
California Restraining Order Appeal Process
The process of appealing a restraining order is a complex and detailed legal process that is significantly different from a trial court proceeding. It requires the observance of procedural requirements and timeliness. Knowing the stages is essential for anyone wishing to pursue this complicated route.
Step 1: Submission of the Notice of Appeal
The first and most critical step in appealing a restraining order is to file the Notice of Appeal. This brief document is a formal notification to the trial court and all parties involved that you intend to appeal the judge's ruling. It is not where you plead your case. It only means that you are intending to appeal.
The Notice of Appeal should be filed in the same trial court that issued the restraining order. Judicial Council Form APP-002, Notice of Appeal/Cross-Appeal (Unlimited Civil Case), will generally be used.
Importantly, this document must be filed within 60 days of the clerk mailing or serving the parties with the “Notice of Entry of Judgment” or a file-stamped copy of the order. Missing this deadline almost always results in dismissal of your appeal, since the appellate court will no longer have jurisdiction to hear your appeal.
Step 2: Appointment of the “Record on Appeal”
After filing the Notice of Appeal, you should prepare the Record on Appeal. This is the compilation of all the official records and transcripts of the original trial court proceedings that the appellate court will consider.
The appellate court will only look at what is included in this record. There cannot be any new evidence at this point. The record generally contains two parts:
- The Clerk’s Transcript
- The Reporter's Transcript
The clerk’s transcript contains all the papers filed in the trial court, including:
- The petition to obtain the restraining order
- Your response
- Any motions filed
- The final order
The reporter’s transcript is the verbatim, word-for-word version of everything that was said at the initial hearing on the restraining order, all the testimony, all objections, and the judge’s rulings. The record must be complete and accurate, since your entire appeal will be turned on the showing of legal error based on the facts that occurred at that first hearing and nothing more.
Step 3: Writing and Filing the Appellant's Opening Brief
Drafting and filing the “Appellant’s Opening Brief” is arguably the most critical and complex step of the entire appeal procedure. This is not a narrative recounting of events. Instead, it is a highly formal, meticulously structured legal argument.
In this brief, as the appellant, you need to express where and how the trial judge erred in his/her legal judgment of the case. This includes carefully studying the applicable statutes and the case law and then applying them to the specific facts in the official Record on Appeal. Each claim of error must be squarely supported by citations to the particular pages and lines of the Clerk's Transcript or Reporter's Transcript in which the error is described or where the absence of substantial evidence is evident.
The brief must also follow rigid formatting guidelines regarding length, typeface, and citation format. It is a highly specialized legal document that bears little to no resemblance to ordinary legal drafting. It is intended to convince the appellate court that the error by the trial court resulted in a wrong conclusion, and the restraining order should be reversed.
Step 4: The Respondent's Brief, Reply Brief, and Oral Argument
After the appellant files his/her opening brief, the respondent can file a legal brief called the Respondent's Brief. In this document, the respondent will explain why the ruling made by the trial court was correct and why the allegations of legal mistake by the appellant are invalid. They will also aim to show that the judge did not exceed the provisions of the law and that the evidence justified the verdict.
Once the respondent has filed his/her brief, as the appellant, you may file a “Reply Brief.” In this brief, you can only respond to matters raised by the respondent in their brief, but not raise new arguments.
Some appeals may have a final step called the oral argument. In this brief session, attorneys present arguments and answer judges’ questions. The lawyers on both sides of the case can outline their most important points directly before the appellate judges and respond to any questions that the judges might want to ask. Oral arguments are not always provided and are typically reserved for cases involving complex legal issues that the judges want to discuss further. The appellate court will then put the case under submission and give its written decision at a later date.
Deadlines and Timelines of Appealing a Restraining Order
The most crucial of the deadlines is filing the “Notice of Appeal,” which is usually 60 days after the trial court clerk serves or mails notice of the entry of the appealable judgment or order. This is a 60-day jurisdictional window, which means that once you miss it, the appellate court will typically lose its jurisdiction to hear your appeal, regardless of the strength of your legal arguments.
This rule has very few exceptions, so timely filing is paramount. Although this first deadline is absolute, the whole appellate process is lengthy. It is a realistic possibility that the process will take between 12 and 18 months (or more) between the filing of the Notice of Appeal and the appellate court's final decision, depending on the case's complexity and the caseload in the particular Court of Appeal. During this time, the original restraining order typically remains in effect, and you are still required to abide by it.
What an Appellate Lawyer Does
Because of the complexity of the procedural requirements, the tight deadlines, and the highly technical nature of the legal arguments, appealing a restraining order is typically not a do-it-yourself process. The field of appellate law is very specialized, unlike trial litigation. Whereas a trial attorney is concerned with presenting evidence and proving facts to a judge and jury, an appellate attorney is concerned with the trial court's detection and description of legal errors. An attorney’s specialty is:
- Interpreting court files
- Investigating complex legal questions
- Writing convincing written arguments that meet the rigorous standards of the appellate courts
The success rate of self-represented litigants in California appellate courts is very low, mainly because the appeal is not about retelling your story and presenting new evidence. Your attorney’s role will be to demonstrate that the trial judge committed a reversible legal error, relying solely on the trial record established during the trial court.
Possible Results of a Successful Appeal
If you are successful in your appeal of a restraining order, you can secure any of the following outcomes, each with varying implications for your case:
Appeal Affirmed
When the courts affirm an appeal, it means the appellate court has concurred with the decision made by the trial court, and the restraining order is not lifted.
Reversed Order
When the appellate court “reverses” the trial court's order, it implies that they believe the lower court made a grave legal mistake, in which the case should be overruled. The restraining order in this case is usually withdrawn, as though it had never been issued.
Reversed and Remanded
This is a typical result in which the appellate court reverses the trial court's decision because of some legal error, but remands the case back to the trial court. The trial court is then directed to hold fresh proceedings in line with the directions of the appellate court. This can imply that a fresh hearing will be arranged to address the specific error the Court of Appeal identified.
Find a Restraining Order Attorney Near Me
Appealing a restraining order in California is daunting, and careful attention to detail and deadlines must focus on legal arguments rather than factual disputes. The nuances of compiling the record, writing convincing briefs, and the procedures of going before the appellate court highlight that this is typically not a task to be left to the unrepresented.
If you need an appeal to a restraining order, contact the attorneys at Goldman Flores Restraining Order Law Firm today to discuss your case at 213-341-4087. Our appellate attorneys are ready to evaluate your case and provide the experienced legal guidance you need to defend your rights and achieve a more satisfactory resolution.
