Civil: General Information
A civil matter involves a lawsuit in which one party sues another to recover money, real property or personal property, to enforce a contract or an obligation, to collect damages for injury (tort), or to protect some civil right. In a complaint, the filing party is called the Plaintiff and the accused party is called the Defendant. There can be multiple plaintiffs or defendants in a case. There are various civil petitions that can be filed. In petitions the filing party is the petitioner and the opposing parties are called respondents. Examples of civil petitions include name changes, restraining orders, and petitions for a writ of review to name a few. The laws governing civil matters are established by the State Legislature in the Government Code (GC), Code of Civil Procedure (CCP) and the Civil Code (CC). Rules are established that further define business practices and court processes. The California Rules of Court (CRC) and local rules published by each Court in the state are available online to view.
The Superior Court has jurisdiction over both limited and unlimited matters. A matter is a limited case if the demand of the complaint, exclusive of interest, or the value of the property in controversy amounts to $25,000.00 or less. CCP 86 sets forth in greater detail various cases that would fall under limited jurisdiction. A civil action or proceeding other than a limited civil case may be referred to as an unlimited civil case (CCP 86). Usually unlimited cases are matters in which the amount demanded exceeds $25,000.00, the value of the property exceeds $25,000.00, or damages are prayed for as “according to proof” such as in a personal injury case where medical damages continue to be incurred beyond the filing of the complaint.
Each Superior Court is in a judicial district with definite geographical boundaries, which are the VENUE of the court. A general matter is within the venue of a particular court if any of the following conditions are met:
- The defendant lived in the judicial district at the commencement of the action (CCP 395)
- The contract was entered into or to be performed in the judicial district (CCP 395)
- The accident or injury (tort) occurred in the judicial district (CCP 395)
- The real property in dispute is located in the judicial district (CCP 392)
Occasionally, a civil case arising outside the venue of the court is filed, but it is the defendant’s responsibility to object to improper venue. Some civil cases are heard in a central location or region in the county, such as CEQA (California Environmental Quality Act) matters and some law and motion hearings. See the Court website for more information and notices about where some specialized cases types or matters are heard.
Statute of Limitations
The time limit in which to file a case is called the statute of limitations and in regard to civil matters, the time limits vary and are cited in CCP 312 - 366.3.
Guardian Ad Litem
The plaintiff or defendant may be an individual, a partnership, a business, a corporation, or a government agency. If the plaintiff or defendant is a minor, conservatee or incompetent person, then a Guardian Ad Litem must be appointed by the court to represent the minor, conservatee or incompetent person in each case. Information on parties to civil actions is set forth in detail in CCP 367-389.
Commencement of the Case
A civil action is commenced by filing a complaint with the court (CCP 411.10). Occasionally, a complaint may not be the initiating document. For example, a Confession of Judgment can commence a civil action, but most of the time the complaint is the document filed to commence a civil action. Complaints and other documents may be prepared and filed on Judicial Council forms, or if no form exists, a pleading must be drafted and be in the proper legal format, pursuant to CRC 2.100 and following. The San Bernardino County Law Library has books with formats and examples for drafting pleadings of different types.
The complaint or pleading must be filed with some basic documents, including a Certificate of Assignment and a Civil Case Cover Sheet, and accompanied by a filing fee or valid application and proposed order granting a fee waiver. A governmental agency does not pay a fee at the time of filing but must put the government code that allows the waiver of fees on the face of the complaint or pleading. The filing fees are due from the governmental agency when a judgment is collected from the party ordered to pay costs.
In most cases, the plaintiff pays the filing fee, or files a fee waiver if eligible, and the clerk files the complaint and issues a summons. A copy of each of the complaint, summons, and supporting documents must be served upon the defendant (CCP 412.10 through 417.40) thereby giving notice that there is a civil action pending.
The summons gives limited direction to the defendant regarding responding to the complaint. It states the court where the case was filed, parties to the suit, and instructs the defendant that the time to respond is 30 days, or they may lose the case. (CCP 412.20) a copy of the summons is usually served on the defendant by a sheriff, marshal, constable, a private process server, mail, publication of summons, or someone over 18 years old who is not a party to the action. (CCP 413.10 - 416.90) The original summons is retained in the court file. The proof of service must be filed with the court. (CCP 417.10 – 417.40) Proof of service is a written statement signed by the server stating that the defendant was given a copy of the summons and complaint. Proof of service forms are available on the Judicial Council website; be sure to use the correct form for proof of service of a summons and complaint rather than a form for a subsequent document. The summons brings the defendant, upon being properly served, under the jurisdiction of the court.
Delay Reduction/Fast Track Rules
The Government Code, California Rules of Court and Local Rules provide guidelines and rules to ensure that cases are handled in a timely manner and completed within certain time frames. (GC 68600, CRC 3.700 and following, and Local Rules 400-418). Delay reduction refers to a legislative act intended to expedite the management and processing of certain general civil cases from the time the first paper is filed, which begins the court’s jurisdiction, through the final disposition. Delay Reduction is formally called The Trial Court Delay Reduction Act and is often referred to as Fast Track. Delay reduction is intended by the legislature to maximize efficient use of the courts’ resources so that cases may be resolved consistent with the Standards of Timely Disposition adopted by the California Judicial Council for cases filed on or after January 1, 1991.
The purpose of the time standards imposed under the delay reduction act is to improve the administration of justice by encouraging prompt disposition of all matters coming before the courts. Parties of general civil matters are encouraged to proceed at an accelerated pace, especially in cases involving promissory notes, simple breach of contract, collection and any other cases susceptible to early disposition. Parties to an action and counsel are accountable for completing the preliminary steps of litigation, such as services of complaints, filing of proof of service, filing of cross-complaints and proof of service of cross-complaint as well as timely requests for default and default judgment.
Trial court delay reduction rules only apply to actions included in the classification of general civil and exceptional cases. They do not apply to such matters as Petitions for Preliminary Injunction or Petitions for Extraordinary Writs, Restraining Orders, Domestic Violence proceedings, Change of Name, Juvenile Court proceedings, Family Law Act proceedings, Uniform Child Custody Proceedings, Probate and Guardianship proceedings, Criminal actions, Unlawful Detainer and Small Claims cases.
Effective July 1, 2002 the Judicial Council adopted new rules on civil case management. The changes to the Rules of Court are designed to simplify case management procedures for the courts and practitioners. The newly revised rules should also result in greater uniformity of civil practice and reduced costs in litigation. The rules include a Judicial Council form Case Management Statement (form CM-110). This eliminates local case management questionnaire forms by county and provides a case management form that will be used statewide. The Case Management Statement may be submitted jointly if the parties choose, but joint submission is not required.
After a complaint is filed with the clerk, if the plaintiff wishes to attach the property of the defendant as security for a possible judgment, the law provides that he or she may institute attachment proceedings by filing an Application for Attachment, and shall be supported by Affidavit. A court order and filing of an undertaking as provided by statute CCP 489.210-489.220, gives the clerk authority to issue a writ of attachment that is served by the levying officer or registered process server for the property being attached. The property being levied upon is held until the determination of the plaintiff’s claim. However, the United States Supreme Court has declared that the attaching of the defendant’s wages through this process is unconstitutional, and the California Supreme Court has ruled similarly. More recently the California State Legislature has passed a bill that prohibits attachment of wages prior to a court hearing. Consequently, the levying officer agencies will not serve a Writ of Attachment if it is for wage garnishment purposes.
There are various methods by which a defendant can release an attachment, but the one most commonly used is the filing of a motion with points and authorities in the law and motion unit of the court, and the posting of a bond or undertaking, the amount of which is determined by the judge if he grants the motion releasing the attachment.
The defendant may contest or deny the allegations by filing a proper, legally sufficient written response with the court and posting the necessary fees within the statutory time allowed which is within 30 days of the date of personal service. If service was completed in a manner other than personal service, the time to respond may be extended by 10 days. For example, in substituted service, reasonable attempts must be made to serve the defendant in person, but if he or she cannot be found, then the documents may be served on a member of the household over 18 and mailed addressed to the defendant; then the defendant would have 40 days to file an answer or otherwise respond. The defendant must serve a copy of the response upon the plaintiff. A proof of service form or pleading must accompany the response when it is filed with the court.
There are many different types of responses ranging from a simple general denial form response or a form answer, to a comprehensive document drawn up by an attorney. A person can act as his/her own attorney (in pro per) in the prosecution or defense of a civil action, however in doing so, a pro per party is responsible for following the rules of court and do so at their own risk.
Concurrent with the filing of a response, the defendant may file a cross-complaint naming the plaintiff or another party in a countersuit for damages (CCP 422.10). A cross-complaint must be a separate document; it must arise out of the same cause of action; it can bring in a new party or parties other than the plaintiff and it must be served on the cross-defendant. A cross-complaint can be filed at any time before the court has set a date for trial, as long as the party is not cross-complaining against the party who sued them. If the cross-complaint is against the person who originally sued the cross-complainant, then the cross-complaint must be filed concurrently with the answer or the party must obtain leave of court in order to file cross-complaint at a date after the answer has been filed. (CCP 428.50) The time to answer a cross-complaint is within 30 days from service, unless the court orders an extension of time to plead.
The defendant(s) may file a demurrer to the complaint. The plaintiff may demurrer to the answer of the defendant(s) also. This is a pleading that objects to possible legal defects in the specified document objected to and a hearing on the Demurrer is held in the Law and Motion Court.
If the plaintiff who files the Complaint or the defendant who files the answer wishes to change the contents of his or her pleadings in some respect, he or she may do so before trial by filing either an amendment to the pleadings or an amended pleading pursuant to the statutes governing the ability to amend. (CCP 26.50, 471.5, 472, 473, 474)
There is a category of filing for collections cases that are exempt from the fast track rules governing the timelines to bring the cases to trial (CRC 3.740). In many cases involving collections the defendant does not respond and the matter goes to judgment by default. A case management conference is not set unless a defendant responds. If there is a response, the collections case is no longer handled in an expedited manner and must go through the general civil fast track and trial readiness processes.
An amendment to the Pleading is an addition, substitution, or change in the original pleading related to matters occurring prior to the commencement of the action, such as adding or striking out the name of any party, or by correcting a mistake in the name of the party, or a mistake in any other respect; the amendment does not supersede the original complaint; it is added to the Complaint and becomes part of it.
An amended pleading is a pleading that is entirely rewritten pertaining to matters of substance, and is used in place of, and supersedes the original pleading; an amended Complaint should be verified the same as the original Complaint and a Summons issued and served on un-served defendants, and time to answer or otherwise respond is within 30 days for personal service.
A supplemental pleading (CCP 464-465) is filed on noticed motion or upon stipulation of parties and it alleges facts material to the case occurring after the original pleading has been filed. A Supplemental Pleading is merely an extension to the case made by the original pleading and it can only bring up matters that occur after the commencement of the action. It may be filed any time before judgment.
A plaintiff may file a request for dismissal for various reasons. (CCP 581 – 583.430) Some reasons may be: The plaintiff decides not to continue with the suit, the defendant pays the obligation the suit was based upon, the suit was filed in error, or the suit was filed in the wrong venue.
The dismissal can be filed with or without prejudice. If the dismissal is filed with prejudice the litigant cannot sue again on the same cause of action. If the dismissal is filed without prejudice, the litigant may file the suit again on the same cause of action as long as time has not run out or some other legal issue prevents it.
A dismissal may be filed as to one defendant, leaving the action to proceed against the remaining defendants. In some cases, a dismissal by court is mandatory if the plaintiff fails to bring the action to trial within 5 years after the action is commenced. (CCP 583.310)
A default judgment may be had, if the defendant fails to file an answer or otherwise respond to the complaint within the time allowed by law after proper service has been made. The plaintiff may request the entry of default and a default judgment. (CCP 585-587) The entry of default records the fact that the defendant defaulted by not answering or responding, or by not answering or responding in time.
Default judgment proceedings are an important aspect of civil procedure because judgment can be entered without the necessity of trial court time. A default judgment by clerk may be entered without judicial review on matters arising from contracts or recovery of money. In some cases additional proof and evidence are needed to determine the plaintiff’s claim and the judgment is determined by means of a default “prove-up” hearing before a judicial officer after which a default judgment by court is entered.
At any stage of the proceedings, after the complaint is filed, an attorney for a party to the action may compel the attendance of a witness for the purpose of giving testimony at trial, a deposition or other proceedings, by preparing a subpoena and then causing it to be served on the prospective witness. A party appearing in pro per must have the clerk of the court issue a subpoena. A clerk can pre-issue a subpoena, but it must be filled in by the party prior to service. An attorney is an officer of the court and may prepare, issue, and serve a subpoena without the court’s assistance. An attorney may wish to have a pre-issued subpoena from the clerk but it is not required in the same way as it is for a pro per party who is not an officer of the court.
When it is desirable to have the witness bring specified books, documents, or other things under their control to the hearing, a subpoena duces tecum is issued. An affidavit showing good cause is prepared by the party or attorney and accompanies the subpoena.
Any disobedience to a Subpoena or Subpoena Duces Tecum, refusal to be sworn, or to testify as a witness may be punished as a contempt of court by the court issuing the subpoena, and a bench warrant may be issued and served on that party. A person subpoenaed to appear as a witness is entitled to witness fees according to the provisions in applicable statutes. A witness may not be obligated to attend as a witness before any court, judge, justice, or any other officer, unless the witness is a resident within the state at the time of service, but there can be exceptions.
There are other various forms of discovery conducted outside the court such as Request for Admissions and Interrogatories. These types of discovery documents are not filed with the court by rule. The court does not get involved unless there is a dispute about the scope of the discovery or a failure of a party to timely answer the questions as prescribed by statute. A motion to compel discovery is filed with the court and a ruling is made to either limit discovery or compel a response.
When the defendant has contested the action by filing a proper response the case is “at issue” (at least one response to each complaint is filed, or cross-complaint with no response has been on file for at least 6 months). A civil case not subject to delay reduction may be set for trial when the court so requires, or any party may file a request to proceed with trial. In cases subject to delay reduction (also known as “Fast Track” – see above), the court may require a case management conference, arbitration and a mandatory settlement conference prior to commencement of trial. A Case Management Statement is filed with the court 15 calendar days prior to the case management conference that was scheduled and noticed when the complaint was filed. This document may be filed jointly by all parties, or individually by the plaintiffs and the defendants. This document sets forth facts to support readiness for trial, whether a jury trial is demanded, whether the case is subject to arbitration, etc. (CRC 3.700 and following).
Various methods of alternative dispute resolution (ADR) are used in an attempt to settle the case without a need for trial. An ADR packet is provided at the time of filing the complaint. Certain cases will be subject to mandatory arbitration. Some parties elect to have mediation instead of or in addition to arbitration. The arbitration or mediation proceeding can be binding if agreed upon by the parties. A mandatory settlement conference is held prior to the commencement of the trial. Attorneys, parties and insurance representatives able to settle the case must be present at the conference.
A stipulated judgment may be filed with the court, subsequent to the filing of the complaint up to and including the time of trial on the issues. At some time during that period, the parties may agree to stipulate to the terms of a judgment that specifies how much money is owed to whom and the conditions under which it is to be paid. The stipulation must be signed by both parties or orally entered into on the court record. In some instances, it is the first appearance by the defendant and requires a first appearance fee. By signing the stipulated judgment, the defendant has made a general appearance, so the fee becomes due. The clerk enters the judgment pursuant to stipulation after judicial review.
A trial may be a court trial or a jury trial. In a court trial the case is decided by the judicial officer without a jury. Either party may file a demand for jury trial. The demand must be timely filed per statute or the right to a jury trial is waived. In addition to the proper demand for jury trial, a deposit of advance jury fees is required at least 25 days prior to the date set for trial. The deposit amount is set by statute and is made with the clerk. Additional jury fees will be collected for each day the jury is in session. (CCP 631 (5)) Some courts also require a deposit for court reporter fees or fees for other means of recording fees.
If the case is not previously resolved by default or settlement, when the trial date arrives, the bench officer calls the case. One of several things may occur:
- If both parties are present and ready to go to trial, the case will proceed and be tried.
- If only the plaintiff is appearing and wishes to proceed, the case may be heard and can proceed to judgment based on the proof offered by the plaintiff.
- If the defendant is the only party appearing and is ready for trial, he or she may have the case dismissed because the plaintiff is not there to present the case.
- If both parties are present but for any one of many reasons, are not ready to proceed, the court may grant a continuance to a future date.
- If neither party is present and ready to proceed, the case may be declared “off calendar” or “dismissed.”
When a civil matter goes to trial, each side presents their case; the plaintiff has the burden of proof and presents their side of the matter first, calling witnesses and presenting any evidence to prove their case. The witnesses are subject to cross-examination. The length of the trial varies greatly, depending on how many witnesses and the amount of evidence presented.
After all the evidence has been presented and each party has rested their cases, each party has the opportunity to make a closing argument. The matter is then submitted to the judge for decision. There are various types of judgment in a civil matter:
- Judgment for the plaintiff;
- Judgment for the defendant;
- Judgment for a cross-complainant against a cross-defendant;
- A so-called “net judgment” where there is a cross-complaint and the judge finds for each party for a certain amount, but there is a balance remaining, a net amount which goes to the prevailing party;
- An “off-set” judgment where each party gets nothing and each party bears their own costs;
- Judgment of Dismissal - usually for lack of prosecution, the judge dismisses the plaintiff’s case against the defendant and the defendant may recover costs – this action is a judgment rather than a dismissal so that a writ or abstract may be issued to enforce the judgment for costs.
The clerk is required to enter the judgment in the register of actions. (CCP 668.5) The clerk must send a Notice of Entry of Judgment (CCP 664.5) or a filed stamped copy of the judgment on cases in which the prevailing party is not represented by counsel. In cases where the prevailing party is represented by counsel, it is the responsibility of the attorney to execute the Notice of Entry of Judgment to all parties, together with proof of service by mail. The notice contains pertinent information as to the case title, case number, prevailing and losing parties and the amount of judgment.
Civil jury trials involve additional procedures due to the required jury fees, jury selection and the verdict. If either party demands a jury trial, that party must deposit jury fees at least 25 days before the trial date. Additional jury fees will likely be due and the amount depends on how long the trial lasts. (CCP 631 (5))
When the civil action is called for trial by jury, the clerk, or the judge where there is no clerk, must randomly select names of the jurors from the trial jury box of the court, or call names from a random computer listing of jurors, until the jury is selected or the panel is exhausted. The jury consists of 12 persons or any number less than 12 persons upon which the parties may agree. (CCP 219-222)
Proposed jury instructions are submitted to the court by counsel and discussed with the judge for any modifications before the trial begins. Jury Instructions are read to the jury before they retire for deliberation.
At the conclusion of all testimony, evidence, and submission of exhibits, the closing arguments are heard. Closing arguments are a summation of all information presented by each side, substantiating testimonies and evidence to prove their cases.
The jury is then retired for deliberation; the juror may take 3 things into the jury room:
- Jury instructions
- Exhibits admitted (CCP 612 and 612.5)
- Verdict slips prepared by the court clerk in advance. If a special verdict is necessary, counsel may be ordered to prepare it. When at least three-fourths of the jurors have agreed upon a verdict, the jurors then return to the courtroom. The clerk then reads the verdict aloud and the verdict is filed. Either party may ask the judge to “poll” the jury, which means each juror will be asked if this is their true verdict. (CCP 618)
In jury trials, recording of the verdict and judgment must be made in the court minutes and entered on the Register of Actions within 24 hours.
If the judgment debtor refuses to pay the judgment creditor or delays payment, the following options are available:
- An aid in the collection of a judgment is the Court Order for Appearance of Judgment Debtor, (commonly known as an ORAP). (CCP 708.110) The court requires a fee. A judgment debtor can be brought by the judgment creditor into court for an examination as to judgment debtor assets. A judge or commissioner signs the court order and failure by the judgment debtor to appear as ordered to answer concerning income and property may subject them to arrest and punishment for contempt of court if he or she was personally served the order to appear.
- The judgment creditor may request the issuance of a writ of execution by the clerk. A writ of execution is a court paper showing all relevant information regarding the judgment that the levying officers requires in order to serve the debtor. The writ is a means of levying on the judgment debtors property to collect or seize whatever is necessary to satisfy the judgment, plus costs. (CCP 681-688)
- The judgment creditor may request the clerk to issue an Abstract of Judgment which shows the elements of the judgment and when recorded will put a lien on the real property. The judgment creditor records the abstract with the County Recorder’s office in the county where the judgment debtor’s real property is located. The judgment would have to be paid off in the event of a sale or refinancing of the property.
Another element of post judgment procedure is the Third Party Claim. (CCP 720.220 -720.250) This is a document that can be filed with the levying officer if some personal property levied on, is claimed by a third party as his/her property. The claim must describe or identify the property attached, state its reasonable value and set out facts to show the claimant’s title and right to possession. After the verified claim is filed with the levying officer, he or she must make a demand upon the creditor for the posting of a bond if the creditor wishes to contest the third party’s claim. If the bond is posted, a hearing can be set for a court determination of the Third Party Claim, deciding which party is entitled to the property in question.
If a party is unsatisfied with the judgment or order entered in a civil action, the party has a right to appeal. (CCP 901 and following) An appeal must meet the requirements in the Code of Civil Procedure and the California Rules of Court. An appeal, other than a limited civil case, is to the court of appeal. An appeal of a limited civil case is the appellate division of the Superior Court. The rules for appeals in limited civil cases are found in CRC 8.820 and following. The rules for appealing unlimited civil cases are found in the California Rules of Court 8.100 and following. Information on Internal Operating Procedures by the Appellate District can also be found in the California Rules of Court.
In a limited civil case, the time for filing the notice of appeal is the earliest of the following, except as otherwise provided by statute or rule:
1) 30 days after the date of mailing by the clerk of the court of a document entitled “Notice of Entry” of judgment or appealable order;
2) 30 days after the date of service of a document entitled “Notice of Entry” of judgment or appealable order by any party upon the party filing the Notice of Appeal, or by the party filing the Notice of Appeal; or
3) 90 days after the date of entry of the judgment.
A file stamped copy of the judgment or appealable order may be used in place of the document entitled “Order of Entry.”
A filing fee for a Notice of Appeal must be paid at the time of filing, or within ten days thereafter. The Appellate Division of the Superior Court determines the appeal from the record sent up by the trial court, usually consisting of one or more of the following: Clerk’s Transcript, Reporter’s Transcript, Settled Statement, or Agreed Statement. Settled and Agreed Statements are signed by the court and constitute a brief description of what took place in the disputed case.
The Rules of Court describe the steps in the limited civil appeals process. Each step must be completed according to certain time limits. Failure to meet time requirements results in a default, which prevents the case from being heard in Superior Court. After the appeal is heard, the Appellate Division of the Superior Court files a remittitur (decision) with the trial court. Judgment affirmed means the judgment stands as rendered by the trial court. Judgment reversed means the judgment or order appealed from is no longer in force and is, in effect, vacated, and the status of the case reverts to that existing prior to the entry of the judgment of order. Depending on the outcome of the appeal, the court may set a hearing date or either party then move for a new trial. The case is returned to the control of the trial court once the remittitur is filed.
In an unlimited civil case, the time for filing the Notice of Appeal is the earliest of the following, except as otherwise provided by statute or rule:
4) 60 days after the date of mailing by the clerk of the court of a document entitled “Notice of Entry” or judgment or appealable order;
5) 60 days after the date of service of a document entitled “Notice of Entry” of judgment or appealable order by any party upon the party filing the Notice of Appeal, or by the party filing the notice of appeal; or
6) 180 days after the date of entry of the judgment.
A file stamped copy of the judgment or appealable order may be used in place of the document entitled “Notice of Entry.”
A filing fee for Notice of Appeal must be paid at the time of filing, or within ten days thereafter. The Appellate Division of the Superior Court determines the appeal from the record sent up by the trial court, usually consisting of one or more of the following: Clerk’s Transcript, Reporter’s Transcript, Settled Statement or Agreed Statement. Settled and Agreed Statements are signed by the court and constitute a brief description of what took place in the disputed case.
The Rules of Court describe the steps in the unlimited civil appeals process. Each step must be completed according to certain time limits. Failure to meet time requirements result in a default, which prevents the case from being heard in the appellate division. After the Notice of Appeal is filed, the Appellate Division of the Superior Court prepares a packet for the district court of appeals. Once a decision is made on the appeal, the appeals court renders an opinion and subsequently files a remittitur (decision). A Certified copy of the opinion and remittitur is sent to the trial court. Judgment affirmed means the judgment or order appealed from stands as rendered by the trial court. Judgment reversed means the judgment or order appealed from is no longer in force, and is, in effect, vacated and the status of the case reverts to that existing prior to the entry of the judgment of order. Depending on the outcome of the appeal, the court may set a hearing date or either party may then move for a new trial. The case is remanded (returned) back to the control of the trial court once the remittitur is filed.
Maintenance of Cases
Once cases are dispositions by dismissal or judgment the file, register of actions and exhibits are maintained for a certain period of time. The minimum retention period for records varies and is covered under Section 68152 of the Government Code. The records may be destroyed upon an order by the presiding judge once the time limits have passed.
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What Is Civil Harassment?
In general, civil harassment is abuse, threats of abuse, stalking, sexual assault, or serious harassment by someone you have not dated and do NOT have a close relationship with, like a neighbor, a roommate, or a friend (that you have never dated). It is also civil harassment if the abuse is from a family member that is not included in the list under domestic violence. So, for example, if the abuse is from an uncle or aunt, a niece or nephew, or a cousin, it is considered civil harassment and NOT domestic violence.
The civil harassment laws say “harassment” is
- Unlawful violence, like assault or battery or stalking, OR
- A credible (real) threat of violence, AND
- The violence or threats seriously scare, annoy, or harass someone and there is no valid reason for it.
“Credible threat of violence” means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family. A “credible threat of violence” includes following or stalking someone, making harassing calls, or sending harassing messages, by phone, mail, or e-mail, over a period of time (even if it is a short time).
Read about the law in Code of Civil Procedure section 527.6.
Civil Harassment Restraining Orders
A civil harassment restraining order is a court order that helps protect people from violence, stalking, serious harassment, or threats of violence.
You can ask for a civil harassment restraining order if:
- A person has abused (or threatened to abuse), sexually assaulted, stalked, or seriously harassed you, AND
- You are scared or seriously annoyed or harassed.
Also, the person you want to restrain CANNOT be:
- Your spouse/partner or former spouse/partner,
- Someone you dated at any point, OR
- A close relative (parent, child, brother, sister, grandmother, grandfather, in-law).
The person you want to restrain CAN be:
- A neighbor,
- A roommate (as long as you never dated),
- A friend,
- A family member more than 2 degrees removed, like an aunt or uncle, a niece or nephew, cousins, and more distant relatives, OR
- Other people you are not closely related to.
IMPORTANT: If you are 65 or older or a dependent adult, you can file a civil harassment restraining order against someone you are not close to, BUT you can ALSO file an elder or dependent adult abuse restraining order, which may be better for you because you may be able to get more help before, during, and after the court case.
If you do not qualify for a civil harassment restraining order, there are other kinds of orders you may be able to ask for:
- Domestic violence restraining order (for protection from people you were involved with romantically at some point or close family members). Get more information on getting a domestic violence restraining order.
- Elder or dependent adult abuse restraining order (if the person being abused is 65 or older, or between 18 and 64 and a dependent adult). Get more information on getting an elder or dependent adult abuse restraining order.
- Workplace violence restraining order (filed by an employer to protect an employee from violence, stalking, or harassment by another person). Get more information on getting a workplace violence restraining order.
If you are not sure what kind of restraining order you should get, talk to a lawyer. Click for help finding a lawyer. Also, your court’s family law facilitator or self-help center may be able to help you. And your local legal services offices may also be able to help you or refer you to someone who can.
What Can a Restraining Order Do?
A restraining order is a court order. It can order the restrained person to:
- Not contact you or any member of your household;
- Not go near you, your children, or others who live with you, no matter where you go;
- Stay away from your work, your school, or your children’s school; or
- Not have a gun.
Once the court issues (makes) a restraining order, it goes into a statewide computer system. This means that law enforcement officers across California can see there is a restraining order in place.
Effect of a Restraining Order on the Restrained Person
For the person to be restrained, the consequences of having a court order against him or her can be very severe.
- He or she will not be able to go to certain places or to do certain things.
- He or she will generally not be able to own a gun. (And he or she will have to turn in or sell any guns he or she has and will not be able to buy a gun while the restraining order is in effect.)
- The restraining order may affect his or her immigration status. If you are a person to be restrained and you are worried about this, talk to an immigration lawyer to find out if you will be affected.
If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both.
Types of Civil Harassment Restraining Orders
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So a police officer that answers a call because of serious violence or a serious threat can ask a judge for an emergency protective order at any time of the day or night.
The emergency protective order starts immediately and can last up to 7 days. The judge can order the abusive person to leave the home (if they live with you) and stay away from you and your children for up to a week. That gives you enough time to go to court to file for a temporary restraining order.
To get a more permanent order, you first must ask the court for a temporary restraining order (also called a “TRO”).
Temporary Restraining Order (TRO)
When you go to court to ask for a civil harassment restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order.
Temporary restraining orders usually last about 20 to 25 days, until the court hearing date.
“Permanent” Restraining Order (Restraining Order After Hearing)
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years.
Criminal Protective Order or “Stay-Away” Order
Sometimes, when there is an incident of violence or severe harassment (or series of incidents), the district attorney will file criminal charges against the person committing the violence. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) that is effective while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.
The Restraining Order Process
When someone asks for a civil harassment restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are:
1. The person wanting protection files court forms asking for the civil harassment restraining order.
2. The judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner. Then, the clerk will set a date for a hearing.
3. If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until your court date. The court date will be on the paperwork. These temporary orders can include issues like:
- Ordering the restrained person to have no contact (including no phone calls or e-mails) with the protected person (and other protected people); or
- Ordering the restrained person to stay away from the protected person (and other protected people).
4. The person asking for protection will have to “serve” the other person with a copy of all the restraining order papers before the court date. This means that someone 18 or older (NOT involved in the case) must hand-deliver a copy of all the papers to the restrained person.
5. Both sides go to the court hearing.
- If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will no longer be a restraining order.
- If the restrained person does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account.
6. At the hearing, the judge will decide to continue or cancel the temporary restraining order. If the judge decides to extend the temporary order, the “permanent” order may last for up to 3 years.
Assistance/Glossary of Civil Terms
A Glossary of Terms may be helpful in understanding civil concepts. Civil actions can be very complex. You may need the advice of an attorney in order to proceed with civil action. The clerks in the civil division cannot recommend an attorney to you or give you legal advice. The San Bernardino County Bar Association has a Legal Referral Service. You may also contact the California Bar Association for information on attorneys and areas of specialty. There are various types of legal aid available in San Bernardino County. See the resources provided on the Court’s website for more information.
Frequently Asked Questions
Where do I file my civil case?
In the Court that has jurisdiction over your case and in the district that is the proper venue (geographic location) for the issue being litigated. There is also a form on the website under local forms, called Certificate of Assignment. You must file this form with your new case. The questions on the form will help determine the proper filing district. See also the general definition of venue.
How much does it cost to file a new case or subsequent filings?
Filing fees vary according to the type of case, jurisdiction and type of motion. Please see the current civil fee schedule.
When will my case be heard by the judge?
When you, the plaintiff or petitioner, file your case, in most circumstances, you will receive a court date for some type of status hearing along with a Notice of Case Assignment telling you which department your case is assigned to. The court will monitor the case for delays in moving the case forward by setting a status hearing. For general civil filings you may have a date set for a hearing regarding service of the summons and complaint and you may have a date for a Case Management Conference.
If you file a petition you must request a date for a hearing and give notice of the hearing according to the laws governing proper service and notice of hearings. You will be given a date for a status hearing that is not the actual hearing on the matter. If you did not request and serve notice of the date for the actual petition to be heard the status hearing helps the Court to monitor the file to ensure that the case is moving forward.
If you are the defendant or respondent in a case you will be notified by the plaintiff or petitioner about hearings they have set on the case or been notified by the court about. If you are unsure about future hearing dates you can view case information on the website. Defendants and respondents are required to file formal responsive pleadings in order to preserve their rights and be involved in the case even if there is an appearance at a hearing.
I want to file a motion in my case. How can I find out what dates motions are heard in the district?
Call the court district where your case is assigned and listen to the prompts listed on the automated call center. Press the appropriate number given to speak to a civil clerk to get the available days and times and to reserve a motion date. You will then have the date to include in your pleading and to give notice to the opposing party or parties. Please note that CCP 1005 and other codes set the time frames for proper notice and filing of motions. The date you set must comply or you could have your motion denied for improper notice.
Can I get help with information on handling my own civil case at the Court?
There are links on this website to self-help, legal aid information, the bar association and other resources to research how to handle your own case. The clerks cannot give legal advice – only procedural advice can be provided by the clerk’s office staff. Civil matters can be complex and you may need to contact an attorney for advice and options for handling your case.
What forms are available for filing civil matters with the Court?
There is a link to the Judicial Council website where you can find forms and information. There are also local forms available on this website. Some filings do not have a form created for use and must be prepared on pleading paper and formatted according to the California Rules of Court.
You may need to seek legal advice if you cannot locate the forms you need. The clerk’s office has some forms and forms packets pre-printed. You may look at a list of them to select forms and forms packets to purchase from the Court, but you should have an idea of what you need – the clerk is limited on the ability to advise you and select specific forms for your particular legal issues, but can direct you to the standard form packets we have on hand. Since civil can be complex and include a variety of issues there are not many form packets available for civil litigation. The Judicial Council website is an excellent resource and lists all currently available forms by category.
I don’t understand all of these legal terms. How can I learn more?
See the Glossary of Civil Terms for definitions of many of the terms used in civil procedure. You can also get information on the Judicial Council website and the Department of Consumer Affairs (DCA) website. Please see the links to various resources located on the Court’s website.