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September 30, 2006
Restraining Orders - Who, What, Why? How?
I receive lots of questions about how to deal with dangerous people in a CID. Board members often inquire about restraining orders. Here's a recent question asked of me:
"Can a community , i.e., the HOA, get a restraining order on someone who visits one of the residents here? This person is believed to be very dangerous and has been arrested in the past. We believe the police are watching this person and may be getting ready to arrest them. Even so, can we (the HOA) request a TRO out on him so he cannot come into the community."
It's not cheap or easy to get a restraining order. Get legal advice and assistance if you are serious about considering the possibility. The association has to be able to have papers prepared properly for the court, identify the person and serve papers on the person. The court papers require specificity about what orders are desired, and declarations supporting the allegations need to be prepared. Sometimes there are three court visits involved, sometimes only 2. The 3 would include a temporary restraining order, a preliminary injunction, and eventually a trial, if there is resistance. If someone gets a temporary restraining order, that is not the end of things. The court allows the defendant a proper hearing to show cause why the restraining order should not be extended. Court proceedings are far from inexpensive. There are situations where individuals can get "stay away" restraining orders without the assistance of an attorney to keep someone who has threatened them away from them or places they live or work. Superior Courts in California should have packets for individuals to get which state exactly what is needed to file for the restraining orders.
For associations, it is not as easy. That is because the Association does not have its personal safety at stake. It is an entity, not an individual.
The Association would have to have some proof supporting the need to keep the person away, proof that they are a threat. That means witnesses must come forward and made statements that would become a matter of public record. Lots of times owners or residents are not willing to do that. Sometimes there is a belief or someone knows for sure that the person has harmed someone or been convicted of a felony involving serious criminal behavior; sometimes someone knows that its a registered sex offender, but even being a released convict alone is not enough to keep someone out of a neighborhood (if they are out of prison legally). There would have to have been some threats of some kind to residents or some conduct that justifiably gives people a reason to fear for their safety. Even known or suspected gang members probably cannot be banned by a restraining order from entering an HOA, unless the police have something to offer or owners under a threat can offer testimony as to the propensity . (If a community is gated, of course, access is more difficult.)
If entry is unauthorized and someone is on parole, or if that someone is in a location that their parole terms say they should not be, or if the parolee is consorting with people that they are banned from being around, and the police are called or the parole officer is contacted it is possible that passing certain information on may result in a parole violation or arrest, and that may take the person out of the picture. However, please note that I am neither providing legal advice here nor advising any such contacts without getting legal advice and assistance because HOA reps have to be very careful not to defame someone. People often make incorrect assumptions or get their hands on information that is slightly skewed by the time it reaches them.
If the Board has witnesses willing to come forward, and analyzes the benefits that support the expenditure, and assuming the money for the court action is legally available to be spent (again, I am suggesting legal advice be sought in your own state), and restraining orders are approved by the court, then they are filed with the police department and a violation of a restraining order subjects the violator to arrest.
If the person is coming into the development at the invitation of a resident, and there has been no conduct exhibited that supports the need for a restraining order, it will be difficult to impossible to get one, but an association can spend a lot of money trying.
Posted by Beth Grimm at September 30, 2006 9:38 PM