False Restraining Order Filed Against You? Here’s What to Do

False restraining orders happen more often than the general public realizes. The system is designed to grant temporary orders quickly to protect actual victims, which means the same ex parte process can be used to obtain an order on fabricated or exaggerated claims. The good news: the temporary order is just that, temporary, and the noticed hearing is where the respondent gets a full opportunity to refute the claims.

This article is the operational checklist for someone who knows the restraining order against them is false.

Why are false restraining orders filed in California?

After more than a decade of restraining order defense in San Diego County, the motives I see repeated:

• Strategic advantage in a divorce. A DVRO can affect property division, custody, support, and exclusive use of the family home under Family Code §6321.
• Custody leverage. Family Code §3044 creates a rebuttable presumption against custody for a parent found to have committed domestic violence in the past five years.
• Eviction substitute. A DVRO can include a stay-away order from a residence, effectively evicting the respondent.
• Revenge after a breakup or affair.
• Pre-emptive strike, where the petitioner expects to be accused of something and gets ahead of it.
• Workplace conflict that escalates into a CHRO or workplace violence restraining order.
• Immigration benefit pursuit, where the petitioner seeks a U-visa requiring victim status.

Motive is not a defense by itself. It is, however, a credibility attack under California Evidence Code §780, and it is admissible at the hearing.

What should you do in the first 48 hours after being served?

Read the order carefully

The order tells you the type (DVRO, CHRO, EARO, WVRO), the hearing date, the department, and the specific terms (no contact, stay-away distance, firearm surrender, residence exclusion). Violation of any term is a separate crime under Penal Code §273.6.

Stop all contact

Do not call, text, email, message through third parties, send flowers, or appear anywhere the petitioner might be. Any contact is a violation, even contact initiated by the petitioner where you respond. Block the petitioner's number to remove the temptation.

Surrender firearms if required

Under Family Code §6389, a DVRO triggers an automatic firearms surrender requirement. Under Penal Code §29830, you have 24 hours to surrender firearms after being served. Surrender to a licensed dealer or local law enforcement, get a receipt (form CLETS-040 in DV cases), and file proof with the court.

Preserve evidence

Take screenshots of every text message thread with the petitioner. Save call logs from your phone. Save voicemails. Pull email exchanges into a single folder. Save social media DMs. Save any photos or videos that bear on the alleged incidents.

Identify witnesses

Anyone who saw the alleged incident, anyone who was with you at the times alleged, anyone who can speak to the relationship between you and the petitioner. Names and contact information go to your attorney.

Hire a defense attorney

Within the first week if possible. The written response on form DV-120 or CH-120 must be filed at least two court days before the hearing, and your attorney needs time to prepare the response, gather exhibits, and prepare witnesses.

What evidence wins false restraining order cases?

Documentary evidence wins. The cases I see lost are the ones where the respondent had nothing but their own testimony, and the petitioner had texts.

Texts showing affectionate or friendly contact after the alleged incident

Devastating to a fear-based petition. If the petitioner texted 'love you' or 'come over' the day after they claim you assaulted them, the petition collapses.

Texts showing the petitioner initiating the contact they now claim was harassment

Common in CHRO cases between former dating partners or neighbors. The petitioner files claiming you would not leave them alone. The texts show they kept reaching out.

Time-stamped video, photos, or location data showing the respondent was somewhere else

Doorbell cameras, vehicle dashcams, surveillance from local businesses, credit card receipts with timestamps, EZ-Pass or toll records, Google location history (subpoenaed).

Witness statements

Neighbors who heard normal interactions when the petition claims violent ones. Coworkers who saw the petitioner in good spirits after the alleged incident. Family members who can testify to the pattern of the relationship.

Petitioner's own social media

Public posts after the alleged incident showing the petitioner traveling, partying, or otherwise behaving inconsistently with their claimed fear of you.

Court filings showing motive

Divorce petitions, custody motions, eviction notices, prior restraining order petitions against other people. All admissible to show motive under Evidence Code §780.

How does the hearing work when defending against a false order?

The hearing is the respondent's opportunity. The petitioner files. They get the temporary order. The hearing is where you get to fight.

The petitioner goes first because they carry the burden. They will testify. Your attorney cross-examines, methodically, using the documentary evidence to expose inconsistencies between their sworn declaration in DV-100 and their live testimony. This is where false petitions typically come apart.

Then your case. You testify. Your attorney walks you through your version, in chronological order, with exhibits introduced as you go. Your witnesses testify. Cross-examination from the petitioner's side.

Closing arguments. Your attorney connects the evidence to the law and tells the judge specifically what the petitioner failed to prove.

Ruling. Most San Diego County judges rule from the bench. If the order is denied, the temporary order dissolves immediately. The petitioner can appeal but rarely does.

Can you sue the person who filed a false restraining order?

Sometimes, though the civil remedies are narrower than people expect.

Malicious prosecution

Available if the underlying restraining order proceeding terminated in your favor on the merits, was initiated without probable cause, and was filed with malice. Difficult to prove. California's anti-SLAPP statute (Code of Civil Procedure §425.16) often comes into play.

Defamation

If the petitioner made false statements to third parties (employers, neighbors, social media) about the alleged conduct, a defamation claim may lie. Statements made in court filings are privileged under Civil Code §47(b) and not actionable as defamation.

Abuse of process

Available where the petitioner used the restraining order process for an improper purpose (eviction, custody leverage). Difficult to prove and subject to the same anti-SLAPP defense.

California Penal Code §148.5

False reporting of a crime is a misdemeanor. In practice, district attorneys rarely file these charges, and they are not available for civil restraining order petitions in any case.

Most respondents who win their restraining order defense focus on rebuilding rather than suing. The litigation cost and emotional cost of a civil case against an ex are often not worth the recovery.

Frequently asked questions

How long does a false restraining order take to defeat?

From service to hearing is typically 21 to 25 days. The hearing itself is usually one to four hours. If denied, the order is dissolved that day.

Will the false order be on my record after it is denied?

The fact that the petition was filed and a temporary order was issued will be visible in court records, though the case will show as denied or dismissed. You can ask the court to seal the records under Code of Civil Procedure §527.6(u) for CHROs. DVRO records are harder to seal.

Can I get my legal fees back if I win?

Sometimes. Under Code of Civil Procedure §527.6(s), the prevailing party in a CHRO case can be awarded fees. Family Code §6344 allows fee shifting in DVRO cases. Awards are discretionary and not common.

What if the petitioner keeps filing new petitions?

Repeated filings can be addressed by asking the court to declare the petitioner a vexatious litigant under Code of Civil Procedure §391. The bar is high but the protection is meaningful.

Should I respond to the petitioner's texts after being served?

No. Any contact violates the temporary order, even if the petitioner initiated it. Save the texts as evidence. Do not respond. Your attorney can use the petitioner's continued contact to attack their credibility at the hearing.

Can the petitioner make me leave my own home?

If a kick-out order under Family Code §6321 was issued, yes, temporarily, until the hearing. Your attorney can request that the kick-out order be modified or dissolved at the hearing.