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  1. #1
    Join Date
    Mar 2009
    Posts
    6

    Default Beat a Restraining Order, Want Some Blood

    My question involves restraining orders in the State of: California

    Only been out a couple years, and have diverse experience due to my own shingle, but pretty much a noob in the greater scheme of attorney experience...
    Won a couple SJ's, done some elaborate enforcements, and settled some things on the eve of the trial, but never actually had something go all the way through the trial phase till this.

    I've purposely stayed away from every family law case thats come through here for obvious reasons, except I kinda had to do this one because the accused (respondent) is my very own deadbeat of a brother.

    Basically he dated a psycho chick from like 02-05, then things went south and in 06, she ended up getting a restraining order against him, based on what i am certain is total fabrication (sorry i know my brother and he is a total pussy--theres no way in hell he'd come up to her and her new BF and do anything to put them in "reasonable apprehension of abuse"). But, he faught the thing himself and lost and has been bitter about it for the last 3 years, till it finally came up for renewal in March 09.

    This time she made up a bunch of stuff about how he harasses her new BF [being careful not to allege he violated the word of the order and contacted her] and blahblahblah and more BS, since (a) he's a puss and (b) new BF is quite the opposite and my brother would get curb-stomped american history X style if he even showed his face around that guy. Entire request for renewal was inadmissible hearsay.

    Anyways she ****ed up and included a date in the midst of al her lies, and it happened to be a date like 2 days after he got out of the hospital with a full cast on his leg. So at trial we show with a bunch of witnesses to his injuries, doctors notes, and etc. She cries and gets a continuance saying she didnt get papers or something.

    Final trial date comes, she comes without her boyfriend becauuse apparently the horrible hack of an attorney of hers didnt inform them that BFs subsequently filed declaration supporting her lies could be objected to if he didnt take the day off work.

    Judge disregards it, trial goes on- after direct/cross/redirect, petitioner rested, I moved for a judgment immediately without even calling any of our witnesses and it got granted.

    AT LONG LAST, THE POINT:

    My brother is broke and has no money. I logged all my time and this whole sick retarded mess, even at a discounted billing rate, would have cost anyone else $6k. And beleive me, I aint exactly a rich bigshot, I need the money, and I want my attorneys fees.

    I cant figure out exactly how to move for them. IS CCP 128.5 the only way?
    Thats all i can think of, and i want to get all the correct ducks in a row for this one...

  2. #2
    Join Date
    Jul 2008
    Posts
    853

    Default Re: Beat a Restraining Order, Want Some Blood

    I understand that you need the money, but did you at any point discus with your brother that you wanted to be paid, or did you just assume? Is going after your brother for money worth having your brother never speak to you again?

  3. #3
    Join Date
    Mar 2009
    Posts
    6

    Default Re: Beat a Restraining Order, Want Some Blood

    Uhm... Well, ok, i guess your misinterpretation of my question has alot to do with my being pretty ambiguous about it... but at the end when I mention CCP 128.5, I figured that would make it clear that I want to go after the other party for my attorneys fees. I would never go after my own brother for fees, and i knew he couldnt pay for the service going into it anyway. I want blood, not from my brother but from that psycho ex of his.

    128.5 is for bringing frivolous motions/frivolous pleadings/whatever. The judge basically called her a liar in the transcript. I just want to know how to move to get my fees, if theres anything besides 128.5 i need to use.

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    73,797

    Default Re: Beat a Restraining Order, Want Some Blood

    If I'm deciphering that correctly, you're a licensed lawyer, you represented your brother in court, and now you want to try to recover attorney fees from the moving party?

    What exactly are you looking for? Additional statutes that could allow a recovery of legal fees? A "how to" on filing the motion?

  5. #5
    Join Date
    Feb 2007
    Posts
    2,032

    Default Re: Beat a Restraining Order, Want Some Blood

    Quote Quoting PincheMK
    View Post
    Uhm... Well, ok, i guess your misinterpretation of my question has alot to do with my being pretty ambiguous about it... but at the end when I mention CCP 128.5, I figured that would make it clear that I want to go after the other party for my attorneys fees. I would never go after my own brother for fees, and i knew he couldnt pay for the service going into it anyway. I want blood, not from my brother but from that psycho ex of his.

    128.5 is for bringing frivolous motions/frivolous pleadings/whatever. The judge basically called her a liar in the transcript. I just want to know how to move to get my fees, if theres anything besides 128.5 i need to use.
    Are you an attorney?

  6. #6
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,637

    Default Re: Beat a Restraining Order, Want Some Blood

    You may wish to look at In re Marriage of Falcone v Fyke (2008) 164 Cal. App. 4th 814.

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