How Do I Obtain a Restraining Order Against My Neighbor?
“Whoever fights monsters should see to it that in the process he does not become a monster. And if you gaze long enough into an abyss, the abyss will gaze back into you.” -Friedrich Nietzsche-
I want to focus this blog on providing practical help to those involved in a neighbor dispute. Neighbor disputes are an ancient problem. They are innate in human nature. In California, neighbor disputes result in the filing of civil harassment restraining orders. Civil harassment cases are often the most highly contested and emotional. Everything is on the line in a neighbor dispute including your dignity and mental calm.
Over my 12-year career, I have litigated dozens of neighbor disputes, consulted on even more, and watched 100’s of neighbor disputes in court. I have heard about cases in the privileged hills of Los Angeles, where one neighbor was ordered to pay his neighbor $200,000 in attorney fees for failing to prevail in his request for a restraining order. It is high octane litigation fueled by toxic emotions.
Noise Complaints, Verbal Altercations, and the Law
I recently handled a case that involved an emotional support pig. The emotional support pig owner was my client’s neighbor that suffered from severe mental health and was experiencing suicidal ideation. She kept a large pig in the Long Beach city limits in a residential home. My client lived next door with his parents, they are Spanish-speaking, retired, and harmless. They are a family trying to enjoy the quiet use and enjoyment of their property just as the pig owner claimed she had a right to do.
The spark that led to the filing of a restraining order by the pig owner was my client’s father’s backyard construction projects that were taking place in the middle of the day. The pig owner was irate because the constriction disturbed her important zoom meetings. The pig owner called the police multiple times to report bogus noise complaints. She also made complaints to the city and apparently the entire neighborhood. The city sent out letters. The tension built up.
One day, my client came home after a hard day’s work. Only to find a big bucket of “pig shit” was blocking his driveway. This led to a verbal altercation and the exchange of profane words. Eventually, the pig owner filed a civil harassment restraining order that was granted on a temporary basis and denied after a full hearing. I will return to the pig.
Vandalism, Property Damage, and the Law
Another case involved a mentally ill man, who spray-painted on my client’s property “U want Dick to call 555-555-5555” According to our records, that (changed here for our client’s protection) was his actual phone number. This mentally ill neighbor also sprayed painted his initials in the same color spray paint on a different neighbor’s shed.
Among many other “departures from normative behavior,” this mentally ill neighbor was also using methamphetamine in the alleyway (caught on camera) and prone to outbursts of violence. He was caught on film throwing objects at my client’s home in the middle of the night. One night he “went off crazier than usual” and threw an oven grate like a frisbee into the side of my client’s house. All of these incidents were captured on film and photographed for evidence.
All in my civil harassment flock complain about not being able to sleep, not feeling comfortable in their own home, and having anxiety every time they walk out their front door. A prisoner in their own home. Their lives were reduced to installing cameras and constantly checking them like a lonely housewife on social media. Emotional peace and calm are a mirage in their lives. It is a wretched state of affairs to be involved in a neighbor dispute.
In Los Angeles Superior Court, civil harassment restraining orders are assigned to overburdened family law judges. Civil harassment cases are like unwanted step-children to family law court judges. The judges rank civil harassment matters dead last in the priority in which cases are called throughout the day. For example, the judge must call all family law restraining orders, custody, child support, spousal support, and other family law cases first. In my opinion, the court’s passion and patience for hearing the neighbor’s disputes are minimal. It is a huge burden cast onto already overburdened family law court judges. They apply the higher burden of proof and try to reach an understanding. The priority in which the judge calls matters leads to more continuances, delay, tension, and attorney fees. This can cause people to snap while their case is pending and temporary restraining orders are in place.
How Can I Obtain a Civil Restraining Order in California?
Getting a restraining order is a process. If you are going to seek a restraining order against your neighbor, you must first determine if you have clear and convincing evidence to prove harassment as defined by the Code of Civil Procedure 527.6. Litigants must prove that harassment has occurred by “clear and convincing evidence.” This is a higher standard of proof than in domestic violence restraining order cases. In layman’s terms, you have to prove that harassment occurred “without a substantial doubt” or about 70% sure. This is lower than “beyond a reasonable doubt.” The standard of domestic violence restraining order is even lower. In a domestic violence case, a petitioner must show by the “preponderance of evidence” or “that it is more likely than not true” or 50.0001% that the allegations are true.
If you file a civil harassment restraining order and do not prevail, the court may order you to pay your neighbors attorney fees. See Code of Civil Procedure 527.6 (s). Attorney fees are discretionary by the judge. Some judges give better attorney fee awards and some rarely. The court will determine if the other side can afford the attorney fees. Then good luck collecting. Beware of any attorney in a consultation that states you will get your attorney fees back from your neighbor if you prevail in your case. Chances are fair that even if you prevail you will have to foot the bill for your own attorney.
Deciding if it is worth getting a restraining order against your neighbor is a hard decision. If you prevail, you have an enforceable order that the neighbor is not to disturb your peace or come within a certain distance of you. I have seen this be as small as one yard. Just because you won does not mean the police will actually do something about it. My clients that have prevailed still complain to me about the cop’s responses and their failure to stop their neighbors from pushing their buttons. Even more unpleasantness.
Before you start a court battle with your neighbor it is important to have a complete strategy. To understand the process and rules. To soar over the battlefield before and choose where to fight.
What is Civil Harassment?
When assessing a neighbor dispute for filing, I quote the standard to myself and build my case around the law. “A pattern of conduct (however short) evidenced with continuity of purpose that serves no legitimate purpose other than to harass, annoy, or disturb the emotional peace of the other person.” Code of Civil Procedure 527.6.
Code of Civil Procedure 527.6
(a) (1) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.
(1) “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, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”
(2) “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety or the safety of his or her immediate family, and that serves no legitimate purpose.
(3) “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that serves no legitimate purpose.
Next, I ask myself has technical civil harassment occurred? That being conduct that can be restrained by the court such as physical violence, assault, threats, or destroying the personal property of another. An example, the neighbor spray-painted his phone number and initials on the back alley shed during his meth smoke break. That is technically destruction of property and fits directly inside the Code of Civil Procedure 527.6.
If you are going to file and prevail in a civil harassment case, it is vital to determine if the facts in your case fit the law.
A pattern of conduct means that it has happened more than one-time. The neighbor’s course of action serves no legitimate purpose, but to harass and annoy. The stove grate being thrown into the side of the house, the spray painting sexually graphic language with his phone number, the tossing trash over the side of the fence into my client’s yard, and screaming at my client is a pattern of harassment. The act of spray painting my client’s shed is the destruction of property. All of it shows the continuity of purpose.
Is It Worth Filing A Restraining Order Against My Neighbor?
What do you stand to gain from obtaining a restraining order against your neighbor?
- An enforceable order from the court restraining your neighbor
- An order that allows the police to make an arrest if a violation occurs
- Your neighbor restrained from further harassment, striking you, contacting third parties about you, or other activities
- Neighbor is ordered to stay a practical distance away from you and potentially members of your household.
- The distance your neighbor is restrained depends on the proximity of your home and exit routes. Sometimes it is as far away as one yard.
- What is the likelihood that I will prevail in my request for a restraining order?
- The restraining order will show up in your neighbor’s background checks and potentially affect their livelihood, do I really want to mess with their ability to make a living?
- If the court grants the order then your neighbor will be forced to turn in their firearms.
- If the neighbor remains in the home, you will have a restraining order document to take to property management showing that a tenant is harassing other tenants or neighbors. Good luck getting someone else to do your dirty work.
- The restraining order can provide leverage to get your neighbor evicted by having a lawyer send a letter threatening a nuisance action if the tenant’s conduct continues.
- Remember judges in civil harassment cases cannot evict your neighbor.
- Obtaining a restraining order is just one step to peace and relaxation. You still keep getting the neighbor evicted. In California, tenant rights have taken over like wildfire since COVID. Good luck with getting your neighbor evicted.
When analyzing a neighbor dispute, I try to assist my clients in balancing the pros and cons of filing a case?
- Do I want to escalate the situation and attack a person’s livelihood?
- What are the chances that I will prevail?
- How will the neighbor respond to my filing a restraining order against them?
- Is it likely my neighbor will file a restraining order against me?
- Are the harassment and behavior so bad that nothing is going to change unless I file this civil harassment?
- Should I take a “fight fire with fire” approach to the case? “Putting out the fire…with gasoline” tactics.
- What is the best venue to file my request for civil harassment? Is it better to file downtown at Stanley Mosk Courthouse in Downtown Los Angeles?
- What are my best and strongest points to obtain a civil harassment restraining order?
- What is my pattern of conduct?
- What can I prove?
- Do I really want to go to multiple court proceedings and have to get my neighbor personally served with papers?
- What are my chances of getting attorney fees?
- What types of lawyers specialize in civil harassment cases?
- What will the judge be like that decides my case?
- How far will my neighbor have to be from me?
- What orders should I request of the court?
- Who is going to personally serve my neighbor?
Other Common Examples of Neighbor Harassment
- Calling your work
- Contacting third parties about you
- Pointing a camera directly into your home
- Threats of violence
- Physical Violence
- Destruction of property
What is Likely Not to be Found Civil Harassment?
- Multiple calls to law enforcement for noise violations
- Allowing dog off-leash around neighbor with his dog on a leash
- Having a verbal altercation with your neighbor that does not involve threats of harm
- Child’s new partner showing up at custody exchanges and calling you names and taunting you
Should I File A Restraining Order Against My Neighbor Because of Excessive Calls To Law Enforcement?
In the pig case, the neighbor had called the police several times to report what she perceived as noise violations during her zoom meetings. Of course, having the police called to your home for benign reasons is annoying and harassing to a reasonable person. It served no legitimate purpose but to harass and annoy. However, multiple calls to law enforcement will not be deemed civil harassment in court. I have seen so many civil harassment cases fail because the basis was that the neighbor kept calling the police to report bogus noise levels.
The court does not want to create a disincentive for someone reporting a crime or the safety of another. Your rights to live free of harassment from excessive law enforcement calls are trampled by the government’s duty to make sure that calls to report crimes are not hindered. At some point, excessive calls to law enforcement could mean a restraining order. However, it is a thin line. If your only basis for a civil harassment restraining order is annoying and unmerited police calls to law enforcement, DCFS, CPS, or the city, it might be best to hold out for some better evidence.
If multiple calls to law enforcement are your only basis for a civil harassment restraining order, you expose yourself to attorney fees, embarrassment, grief, and allowing the other side validation for their actions. It may be best to just beef up on your home in the security system and try to catch your neighbor at the scene of the debauch. Come to court with actual evidence instead of complaints.
In court, the pig owner justified calling the police all of those times because she had to “document the harassment” and “build a case.” She stated that the police instructed her to file the restraining order. Her calls and behavior had more to do with her lack of civility than any actual noise problem. The hypersensitive inherit the earth too and sometimes live next door.
The buildup of police calls, and city complaint letters festered. One day, my client came home from work and discovered a 3-gallon blue bucket of “pig-shit” was blocking his driveway. As stated in Don Quixote, “Forgive me for man’s first impulses are beyond his control.” My client demanded an audience with the pig’s owner about the “pig shit.” My client stood up on a ladder to see over the fence calling out the pig owner’s name. What ensued is often referred to as a “verbal altercation,” Each side had someone filming the incident, which caught all of the profanity and reactions. The incident ended with one being called a “Karen.”
The entire incident was caught on camera from several angles. It reminded me of someone filming a person being harmed in the subway and not actually doing anything about it. They held their phones up high and recorded like wizards invoking a spell as they both exchanged unpleasant words. Standing there hovering with their phone waiting to capture the incident that will validate their position and push their narrative.
Despite the entire showdown being captured on camera, the application for the temporary restraining order was granted. The temporary restraining was granted due to no notice being provided. The pig owner wrote down a false and distorted version of the events. It is impossible to protect yourself from lies in the initial application for a restraining order where no notice is provided.
How Do I File For A Civil Harassment Restraining Order Overview?
Obtaining a civil harassment restraining order is a two step-dance. First, you must fill out all the required California Judicial Council Forms or your civil harassment restraining order packet, notice the other side or request a waiver of notice, and submit the papers to the court. Wait for the judge to rule on the granting of a temporary restraining order and obtain the paperwork.
A permanent hearing on the restraining order will be scheduled in 21 days. At the hearing, the judge will determine if the facts in your case constitute civil harassment and merit the issuance of a permanent restraining order.
The restrained party after being served is entitled to a one-time continuance of the permanent restraining hearing to prepare. It is smart if you represent yourself to take your continuance and speak with an attorney about your defense. It also may be best to press going forward to make sure that alleged violations do not become a basis for a meritless restraining order.
If served with a civil harassment restraining order, you may respond by filling out a CH-120 with a declaration and exhibits. However, I would recommend speaking with an attorney before filing a response.
How Do I File For A Civil Harassment Restraining Order? What Are The Steps?
STEP 1: Draft your Request for Civil Harassment Restraining Order Packet. These are Required Forms by the California Judicial Council. These Forms can be found at the California Judicial Council Forms website. All the required forms start with “CH.”
You will need the following California Court Forms:
- Los Angeles Superior Court Case Civil Cover Sheet-Local Form LASC CIV-109
- Declaration of Ex Parte Notice Los Angeles Local Form FAM-018
- CH-100 with Declaration (MC-025 or typed up on Word doc) and Exhibits
- CH-130 was filled out for the court to issue the final orde
To Give Ex Parte Notice and How to Waive Notice?
The law requires you to notify the other party that you are seeking a temporary restraining order against them or waiver of the requirement ordered by the court. The courts are liberal about waiving notice in the filing of restraining orders. Chances are if you ask to waive notice it will be granted if the incident was very recent. Good examples of when it would be waived include death threats, recent violence, weapons involved, or other threats. Use Los Angeles Superior Court local form Declaration of Ex Parte Notice Los Angeles Local Form-FAM-018. On the form, it provides a place to indicate why you are requesting notice be waived. If you want to do things by the book, you should give your neighbor notice
Giving Ex Parte Notice
Call the other side by telephone and inform them about the court.
- You are required to notify the other party by 10 am the court day before you file your papers in court.
- It is important if you give the notice to give it properly
- Inform the other side of the date and time 8:30 am that you will be filing ex parte orders seeking a permanent restraining order
- Address of the Courthouse
- What you are asking the court to restrain them from
- And ask if they plan to file an opposition
- If the person does not answer, leaving them a voice mail will suffice
- An email will suffice as well
- If you do not have any contact information for the other side best to ask for a waiver of notice of the hearing
- Judges will accept text messages for notice
- Use form FAM-018 and indicate how notice was provided.
Filling Out CH-100 Declaration
The most important form you will fill out is CH-100. It is highly recommended to attach a declaration to every CH-100 detailing when, where, and what events occurred that you believe show civil harassment. It will suffice to type a word document that is numbered in paragraph and page numbers. This is a statement by you describing the harassment. The judge will read this statement when deciding whether to grant the temporary restraining order. It is extremely important that the judge at first glance thinks that your statements meet the threshold of Code of Civil Procedure 527.6. Applicants should write down every incident of harassment or violence, with the date, and any evidence that backs it up. This includes text messages, photographs, or phone records.
Avoid putting your opinion or feelings in the declaration. A declaration should consist of events that you witnessed personally or have personal knowledge of through witnessing.
Good Example for Declaration:
“On June 06, 2021, at 11:11 pm, I was at my home and heard my neighbor yell out the F word. Next, I heard a loud thud into the side of my home. I heard a crash that sounded like metal on cement. I went outside and saw an iron grate in my side-yard. Immediately, I took a photograph of the iron grate in my yard. Exhibit B. Afterwards, I went to my home security camera that captured Respondent walking out of his home, screaming, and throwing an object at my home. I took a still frame from the video of Respondent throwing the iron grate at my home. Exhibit B. This occurred while I am seen going outside.
Bad Example for Declaration:
“He verbally assaulted me and made me feel like harming myself. He has no respect for the laws that construction must end at 7 pm. My friends have all seen how this has personally made me sick. I cannot sleep due to the stress.”
If third parties witnessed harassment. They are allowed to write a declaration under penalty of perjury regarding what they witnessed and observed. Make sure to include this on a separate piece of paper and at the end write:
“I declare the following to be true under penalty of perjury executed on this 6th day of June in 2021 in Los Angeles, CA.”
If you use the boxes only on CH-100 in your request for a restraining order, you may miss an incident. Failure to put the other side on notice of the incident will result in the judge not considering the incident because it violates the other party’s due process rights. You want to make sure to isolate each and every incident in your CH-100. That is why you attach a declaration. It is best practice to still write a brief summary of the event on CH-100 and refer to your attached declaration. Judges are busy and like to read the summaries.
STEP 2: File the Papers in Court
A filing fee of $435 may be required. If you cannot afford that amount, fill out FW-001 and FW-003 and request a fee waiver. If violence occurred, the court may waive the first filing fee.
Use the Los Angeles Superior Court Locator with your zip code to determine the appropriate courthouse to file civil harassment cases. That will be wherever your local family law courthouse is located.
Take a copy of all of the forms to court to the clerk’s office or e-file. You should file the papers right at 8:30 am.
Any civil harassment case may be filed at Stanley Mosk Courthouse. There they have judges solely responsible for restraining orders that do not involve kids and civil harassment cases. These courts are packed. If your hearing is going to take longer than an hour, you will be sent to long cause courtroom. This means more attorney fees.
Step 3: Get Back Temporary Restraining Order and Notice to Attend Court Back Signed by the Judge
By the end of the day after submitting your restraining order, you will get back the judge’s decision, The temporary order if granted will be included, CH-110. It will also have notice of when the court will occur, CH-109. It will also come in a packet that must be personally served to the other party. They do not become effective until served.
If the temporary order was denied. You are still entitled to a hearing. Deciding whether to proceed after having your temporary order denied vs. the risk of not prevailing if go forward, would be an important conversation to have with yourself.
Step 4: Personal Service of the Other Party
The court will give you back papers indicating the orders and notice to appear in court. These documents and a blank CH-120 must be personally served on the other side no less than 5 days before court.
Someone over 18 years old age, must personally hand the documents that you receive back from the court to the other side. You can pay the Sheriff’s Department or a process server to do it for you. I always recommend having a friend or relative that is 18 years old serve the other side.
After service has been effectuated. Fill out the proof of service, CH-200. Make sure whoever served the papers signs that document and file it with the court. The court cannot go forward unless there is proof of service on file. Make sure that everything served is checked on the proof of service or written in.
Personal service of the court’s orders must occur five (5) days before the hearing on the permanent restraining order.
Getting someone personally served with the papers is often what stalls most cases. Someone over 18-years old needs to hand the papers to the opposing party.
Step-5: File Your Proof of Service
Make sure to file the CH-200 before the court hearing. Take the original and two copies to be stamped by the clerk or e-filed. If you do not file before court makes sure to have a copy with you at court. The court must continue the case if service is not effectuated. I have seen so many defeated people get their case continued for improper service.
Step 6: Attend the Permanent Restraining Order Hearing
At your hearing for the permanent restraining order, the judge will not let you bring up incidents of harassment that are not stated in your CH-100. Judges do not allow trial by ambush. The judges must allow the other side the opportunity to prepare. Do not expect a continuance of the permanent hearing because you want to present new evidence, or the other side showed up with an attorney. Make sure to get all incidents of harassment and violence in your CH-100 declaration or to amend it before the court with sufficient time for the other side to prepare.
Some judges require you to call witnesses and others conduct the hearings as a back and forth asking of questions by the judge. What type of hearing your case requires is a conversation you should have with an attorney that is familiar with civil harassment restraining orders.
If violations of the temporary restraining order have occurred, it is permissible to bring up those incidents at the permanent hearing and that it not be included in your papers.
Q: How to Protect Yourself from Lies in Your Neighbors Restraining Order at the Hearing?
A: Get a lawyer that specializes in your local court and neighbor disputes.
Hire a lawyer with experience in civil harassment cases and the procedures. In her moving papers, the pig’s owner alleged that my client came onto her property. That he threatened to kill her pig. That he threw a piece of wood with nails onto her property in his rage. A temporary restraining order was issued protecting the pig and its owner from my client.
My client was ordered to always remain 3-yards away from the pig and its owner. He was now exposed to the threat of false and manufactured violations of the temporary restraining order. Even if there is no basis for a restraining order if you violate a temporary one it can be used as the sole basis for granting a permanent restraining order.
To prove the lies, we were able to show that the pig owner’s actions in the videos were not the actions of someone in fear but someone angry. That my client was dealing with an uncivil person. My client’s actions although emotionally charged were not civil harassment. Despite the lies and distortions, the court did not order attorney fees. Protecting yourself from false allegations in a restraining order is a very serious thing.
Neighbor disputes are long and nasty processes. Civil harassment restraining orders are the lowest priority to family law court judges. Before you file a restraining order against your neighbor make sure you are aware of the process and pitfalls. Think is it really worth it for me to get a restraining order against my neighbor? What will this gain for me? If you endeavor to file a restraining order against your neighbor, make sure that you do not turn into a monster yourself and consult with an experienced local attorney in civil harassment restraining orders.