QUESTION

what should I do about an ORDER TO SHOW CAUSE for a temporary restraining order that I was never served?

Asked on Jun 09th, 2015 on Domestic Violence - California
More details to this question:
The party's involved are myself and my estranged wife. I received an ORDER TO SHOW CAUSE RE: FAILURE TO SURRENDER FIREARMS AND/OR PROVIDE PROOF OF SURRENDER OF FIREARMS in the mail today. It says it's pursuant to the TEMPORARY RESTRAINING ORDER SERVED ON ME - and has the date I was served. But I was never served anything. I checked the court's online case search and the case number shows a dissolution of marriage was filed. I checked the sherriff's website and there is in fact a restraining order against me until 2018. the order to show cause says I must appear in court and has a date. I dont have a problem with appearing in court and will do so on the given date but I was never served and it says I was, and I don't understand the surrender of firearms thing. I've never owned a gun in my life. Also, I haven't talked to her in over a year and have never threatened her in any way.
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1 ANSWER

Estate Planning Attorney serving Fremont, CA at Sommers Law Firm
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There's a lot you need to do and some of it is quite complicated.  The first thing you should do is get a copy of the Proof of Service for the TRO and the Summons for the Dissolution.  That will tell you where and when you were allegedly served and also who was the person claiming to have served you.  It wouldn't be the first time someone lied on a Proof of Service - especially if it was done by anyone other than a sheriff's deputy or registered process server.  If it was signed by anyone other than those two, I would file a motion to quash the service and try and get the restraining order set aside until you have the opportunity to go to the court and defend yourself.  The Proof of Service will also show you if she had you served by publication which is possible if they were unable to locate you.  That seems unlikely because the court mailed you a document so they must know your address.   Another reason to get the proof of service is this will give you the opportunity to subpoena the person who allegedly served you the documents so that they can come to court and testify under penalty of perjury that they actually served you.  Although it comes down to your word against their's, I've had a case where a process server in southern California claimed he drove up here to Northern California to serve someone (that's about 16 hours of driving).  When I tried to subpoena him, they dismissed the case.  I've also had a case where the Petitioner forged the proof of service (which I'm sure happens a lot when people represent themselves) and the actual Summons and Petition were found later when the husband was moving some things out - she had hid it under the mattress!  Also, it helps if you can prove you were somewhere else on that day and time such as out of town or at work.  It's important to do this asap.   Also, make sure you go to the OSC hearing and file a reply if there is still time.  In your reply, you should mention that this was the first notice you had received and that you were not served the TRO, the dissolution or a notice of the permanent R.O. not to mention the fact that you do not own any firearms. Best of luck and let me know if there is anything I can help you with.   Cheryl L. Sommers Law Office of Cheryl L. Sommers 44862 Osgood Road Fremont, CA  94539 (510) 659-9800
Answered on Jun 10th, 2015 at 4:59 PM

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