California  |  Civil Litigation

Legal Question

Asked on: 10/27/13, 7:52 am

Can you file a civil suit against someone that has a restraining order against you if you believe it is based on false accusations? If so, is there anything you need to do differently when having that person served etc? Thanks

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Answered on: 10/27/13, 9:19 am by Roy Hoffman

In California one can file a lawsuit against anyone for anything; all it takes is a Complaint and appropriate filing fee. However, a lawsuit based on these facts will likely be summarily dismissed early on and your chances of winning such a suit are zero to none. California Civil Code section 47 provides a complete bar (or defense) for ANY conduct which occurs leading up to or during litigation.


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Law Offices of Roy A. Hoffman PO Box 8170 Moreno Valley, CA 92552

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Answered on: 10/27/13, 2:45 pm by Edward Hoffman

I agree with the other Mr. Hoffman (no relation). But there is an even more basic reason why your proposed lawsuit would fail.

One court has already the facts justified a restraining order. You would be asking another court to rule that the same facts did not justify that order. The second court won't do that. In fact, it won't even consider the question. The matter has already been decided. In legal parlance, it is res judicata. Courts will not re-examine an issue that is res judicata.

The time to argue that you didn't deserve a restraining order was when the other side asked for it. You could also have appealed the order. If it was obtained improperly, you could have sought to re-open that case in order to challenge it. But you can't successfully sue the petitioner in another case for getting the order. If you could, there would be two contradictory judgments -- one which says you deserved the restraining order and one which says you didn't. That would be untenable, which is why the courts won't do it.


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Law Offices of Edward A. Hoffman 11755 Wilshire Boulevard, Suite 1250 Los Angeles, CA 90025

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