1. What is (or where can I find) the step-by-step instructions to file a motion in court requesting to allow process by publication, or any alternative means of service of process, for a temporary restraining order petition when the respondent is intentionally avoiding service?

2. Can I file the motion on my own if I have an attorney of record, or is he the only one who can file motions on my case at this point?

3. If I have two separate requests to make of the court, can I make them in the same motion, or have to file them separately?

Thanks very much in advance for any help regarding this question.

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Originally Posted by veritas88

1. What is (or where can I find) the step-by-step instructions to file a motion in court requesting to allow process by publication, or any alternative means of service of process, for a temporary restraining order petition when the respondent is intentionally avoiding service?

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Where are you located? Laws vary by region regarding service.

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Originally Posted by veritas88

2. Can I file the motion on my own if I have an attorney of record, or is he the only one who can file motions on my case at this point?

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You can file the motion but all parties need to have a copy of the paperwork.

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Originally Posted by veritas88

3. If I have two separate requests to make of the court, can I make them in the same motion, or have to file them separately?

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It depends on the circumstances. Typically I'd say make the two requests in one motion but I'd need to know what your case is regarding and what requests you're making.

Oh I'm Sorry... the case in located on the California court system. Please allow me to rephrase the questions:

1. In California, can I file the motion on my own if I have an attorney of record, or is he the only one who can file motions on my case at this point?

2. What is (or where can I find) instructions, and the correct court form, to file a motion in California requesting the judge to allow process by publication for a temporary restraining order petition when the respondent is intentionally avoiding service?

3. Does a motion have to be filed before the hearing date, and is the a deadline of when a motion can be filed in lieu of a hearing?

4. If I have two separate requests to make of the court, can I make them in the same motion, or have to file them separately? They are related to the same matter, but in is a request to allow alternative means of service, and the to ask the court to enforce a civil procedure rule.

Sorry new at this :(

No apology necessary :) I understood your questions but as I said earlier, laws vary by region. I know my state, Wisconsin, will allow for publication summons if the party is unservable but won't allow for mail service.

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Originally Posted by veritas88

1. In California, can I file the motion on my own if I have an attorney of record, or is he the only one who can file motions on my case at this point?

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You can file the motion, but check with your attorney before doing so. You don't want to create a problem.

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Originally Posted by veritas88

2. What is (or where can I find) instructions, and the correct court form, to file a motion in California requesting the judge to allow process by publication for a temporary restraining order petition when the respondent is intentionally avoiding service?

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I'm trying to determine if California allows for publication summons or not; I haven't found anything positive or negative.

I think ultimately you could type a letter addressed to the court commissioner/judge which is dated and includes the case number stating something along the lines of:

"Hon. (Judge's name here),

Due to the fact that the Respondent in above referenced case is avoiding service after numerous attempts, I am respectfully requesting that a publication summons be allowed as proof of service."

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Originally Posted by veritas88

3. Does a motion have to be filed before the hearing date, and is the a deadline of when a motion can be filed in lieu of a hearing?

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I would file the motion prior to the hearing to alert the judge that you have been unsuccessful in obtaining service on the respondent.

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Originally Posted by veritas88

4. If I have two separate requests to make of the court, can I make them in the same motion, or have to file them separately? They are related to the same matter, but in is a request to allow alternative means of service, and the to ask the court to enforce a civil procedure rule.

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What civil procedure rule are you requesting that they enforce? Why is your attorney not advising you on this?

Here's a website I found for California which has a lot of information including links for the proper forms and procedures:
California Courts: Self-Help Center: Protection from Abuse: Introduction to Restraining Orders

Hope this helped :)

Omg... YOU rule.

Quoting veritas88:
4. If I have two separate requests to make of the court, can I make them in the same motion, or have to file them separately? They are related to the same matter, but in is a request to allow alternative means of service, and the to ask the court to enforce a civil procedure rule.

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What civil procedure rule are you requesting that they enforce? Why is your attorney not advising you on this?

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The first motion is regarding the service (CA Civil Code 527.6(2)m), and the second is to enforce section 527.6(q)(2)& (3)... placing the TRO in the state's database for enforcement. Every time I took the order to the police they said that I have to actually serve the respondent before they can put it in the database. I believe this is a violation of the code, not to mention my civil right?

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Originally Posted by veritas88

The first motion is regarding the service (CA Civil Code 527.6(2)m), and the second is to enforce section 527.6(q)(2)& (3)... placing the TRO in the state's database for enforcement. Every time I took the order to the police they said that I have to actually serve the respondent before they can put it in the database. I believe this is a violation of the code, not to mention my civil right?

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The first code you stated supports the court and the police's behavior and reads as follows:
(m) Upon the filing of a petition for an injunction under this
section, the respondent shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may for good cause, on motion of the petitioner
or on its own motion, shorten the time for service on the respondent
(Taken from here)

It isn't a violation of anything and technically, granting a TRO without the respondent being notified would be a violation of their rights - they have the right to a hearing and the right to object. That's why they have to be served.

So in summary: the judge won't grant a TRO without the other party being notified of the hearing and the police can't enforce a TRO that hasn't been granted. You have to obtain proof of service before you can take the next step.

You CAN NOT file a motion without permission from your lawyer and it is a specific written statement that has to accompany the documents. When you hired the lawyer you hired someone to represent you. You can't file on your own. Any legal actions must be through your lawyer unless they are fired by you or you have the document stating as to why your representing yourself.

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Originally Posted by this8384

1) Where are you located? Laws vary by region regarding service.


2) You can file the motion but all parties need to have a copy of the paperwork.


3) It depends on the circumstances. Typically I'd say make the two requests in one motion but I'd need to know what your case is regarding and what requests you're making.

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1) This is correct rules vary by location and sometimes even by the courts they are going through.


2) This is not correct. The rules of representation forbid it. There are specific rules that must be followed when you already have council. If you vary away from them then the whole process goes in the can and you may have to start over with the entire process.

3) The circumstances have already been explained. The OP wants and is requesting a TRO. The TRO can contain many things as well as instructions that must be followed once approved. Also in a TRO custody can be decided at that time and for a later date custody can be agrued. So yes multiple requests can go into a single document or pleading. TRO can be a blanket one stop shop.

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Originally Posted by califdadof3

1) This is correct rules vary by location and sometimes even by the courts they are going through.


2) This is not correct. The rules of representation forbid it. There are specific rules that must be followed when you already have council. If you vary away from them then the whole process goes in the can and you may have to start over with the entire process.

3) The circumstances have already been explained. The OP wants and is requesting a TRO. The TRO can contain many things as well as instructions that must be followed once approved. Also in a TRO custody can be decided at that time and for a later date custody can be agrued. So yes multiple requests can go into a single document or pleading. TRO can be a blanket one stop shop.

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Wow - is that a state-by-state rule? Our attorney lets us file ourselves, no problem. Then again, that's a family law case not a hearing for a TRO.

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Originally Posted by this8384

Wow - is that a state-by-state rule? Our attorney lets us file ourselves, no problem. Then again, that's a family law case not a hearing for a TRO.

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I for one was flabergasted by your statement that a client can file his/her own motion when (s)he has an attorney-of-record. No, the proper procedure, if the client wants to do his/her own thing, would be for the attorney to withdraw.

It's not a matter of your attorney letting you: the court in most places won't entertain a motion filed by a client when that client is represented. See, for example, Rule 11 of the FRCP:

"... Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name — or by a party personally if the party is unrepresented. ..."

Can you imagine the confusion that would ensue otherwise?

Attorney: "No, your honor, we have not asked for [such-and-such]".
Judge: :o "I'm looking at this document filed on [whenever]. it says right here ... :mad:"
Attorney: :confused: :o"Huh? I knew nothing about this! :mad:"

That should be in most places. If you have stated that you are represented then that is the conduit through which the course of law enters and exits. If you pronounce yourself as Pro Se. Then you are representing yourself. And you do not have legal council. You can't switch back and forth unless there is documentation.

That is my understanding of it and that is what I have been through. Otherwise what your doing is setting up third party representation to a 2 party lawsuit or action. 1) your lawyer 2) yourself and 3) the opposing party. The courts only want to deal with 2 parties unless there is something like a joinder of interest in the case.

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Originally Posted by califdadof3

That should be in most places. If you have stated that you are represented then that is the conduit through which the course of law enters and exits. If you pronounce yourself as Pro Se. Then you are representing yourself. And you do not have legal council. You can't switch back and forth unless there is documentation.

That is my understanding of it and that is what I have been through. Otherwise what your doing is setting up third party representation to a 2 party lawsuit or action. 1) your lawyer 2) yourself and 3) the opposing party. The courts only want to deal with 2 parties unless there is something like a joinder of interest in the case.

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I suppose that would create a lot of confusion, wouldn't it? I guess our case was the exception to the rule.

I apologize; I absolutely should have clarified that we did NOT file anything without speaking to our attorney first and having her consent to do it. At times she'd even send something over and just have us file it because we're much closer to the courthouse. We weren't just filing papers at our convenience and having our attorney run around court like a chicken with her head cut-off.

I guess that leads back to my question a few posts back - if they have representation, why are they asking us about it? Why is their attorney not helping with this?

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Originally Posted by this8384

I suppose that would create a lot of confusion, wouldn't it? I guess our case was the exception to the rule.

I apologize; I absolutely should have clarified that we did NOT file anything without speaking to our attorney first and having her consent to do it. At times she'd even send something over and just have us file it because we're much closer to the courthouse. We weren't just filing papers at our convenience and having our attorney run around court like a chicken with her head cut-off.

I guess that leads back to my question a few posts back - if they have representation, why are they asking us about it? Why is their attorney not helping with this?

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My guess is that it is very expensive to have representation and every time you want to know something they have you at hello. The clock starts ticking. Also if the lawyer said that wasn't the way to go and a friend of a friend did it that way then it must be OK.

We don't know at this point but that is a good question.

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Originally Posted by califdadof3

My guess is that it is very expensive to have representation and everytime you want to know something they have you at hello. The clock starts ticking. Also if the lawyer said that wasnt the way to go and a friend of a friend did it that way then it must be ok.

We dont know at this point but that is a good question.

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True, very true. I know someone who complained that her attorney "billed her every time she talked to him" - duh, his time is money.

I don't see why they'd need a lawyer for this in the first place. If they don't want to pay(and I don't blame them, times are hard) they should just remove them from the case and do it pro se.

Thank you all for such a great thread... it has been very helpful. A few of you asked why I was not being advised by council, and I have briefly summarized the issues I'm having with my attorney in another thread located here. I'm trying to determine my best course of action whether to fire my attorney now before he damages the success of my case any further, or keep him and hope for the best. If I fire him, then I have to make motions on my own since I don't have the money to hire another attorney (he literally took my last dime). So that's why I was asking about how to file or be heard by the judge prior to the hearing date in California. I feel as though my attorney will not ask for or accomplish what is needed at this point to secure my safety, and the hearing is next week. I simply cannot leave my only chance at protection is this mans hands. Any thoughts?

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Originally Posted by veritas88

Thank you all for such a great thread...it has been very helpful. A few of you asked why I was not being advised by council, and I have briefly summarized the issues I'm having with my attorney in another thread located here. I'm trying to determine my best course of action whether to fire my attorney now before he damages the sucess of my case any further, or keep him and hope for the best. If I fire him, then I have to make motions on my own since I don't have the money to hire another attorney (he literally took my last dime). So that's why I was asking about how to file or be heard by the judge prior to the hearing date in California. I feel as though my attorney will not ask for or accomplish what is needed at this point to secure my safety, and the hearing is next week. I simply cannot leave my only chance at protection is this mans hands. Any thoughts?

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As excon advised you on the other thread, I'd dump this guy like a bad habit. He sounds like one of those "horror story" attorneys, the reason everyone fears them.

As excon also said, I'd speak to another attorney about suing this guy for what he's billed you and the poor actions he's been taking - most of them will at least do a free consult. Even if you don't hire them to represent you in the TRO case, they might at least be able to get your money back from this crook.

Do I think you absolutely need an attorney to file a TRO? No. The link I provided you with earlier seems to be pretty helpful in assisting you with filing pro se. I know it can get confusing so if you have more questions, we're always here and will answer to the best of our ability.

Can I ask why you're requesting the TRO? What are the specifics of the case? If you don't feel like sharing them, that's fine - it's just easier for us to give you a better answer when we know what's going on.

I often have an attorney that actually writes up my motions and court info, but I file them personally at the court.
The attorney is merely doing the paper work, not representing me in the court action, I hire them merely for consulting and paper work.

Trying to file for the publication is hard, and in some places the news papers will only accept publication though an attorney, I tried to file in Hamilton Al and no news paper in town would accept the publication since it did not come though an attorneys office.

I am in the process of suing the newspaper I used for the attorney cost now,

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Originally Posted by veritas88

What is (or where can I find) the step-by-step instructions to file a motion in court requesting to allow process by publication, or any alternative means of service of process, for a temporary restraining order petition when the respondent is intentionally avoiding service?

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Hello again, v:

If you're NOT firing your lawyer because he knows the rules and you don't, I'm here to save you again...

What you need is a book called "Rules for Civil Procedure in X County Court" (or something like that). This book will tell you everything you ever wanted to know about motions - like how to file them, when to file them, where to file them, what size paper they need to be on, how much space the margins should take, and on, and on... You can BUY it at your local college bookstore. It's not going to tell you WHY you should file your motions - only HOW.

Now, will you fire this turkey lawyer already?

excon

Wow... thank you for your kinds words and support in this matter. It literally brought tears to my eyes that anyone wanted to help.

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this8384 -- Can I ask why you're requesting the TRO? What are the specifics of the case? If you don't feel like sharing them, that's fine - it's just easier for us to give you a better answer when we know what's going on.

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(Sorry I don't know how to pull quote directly from other threads yet.)
My ex has stalked me for a year now.
My home, car, and mailbox have been broken into, but the police can't arrest him since no one saw him do it. I've received several hang-up calls, and have changed my number several times as a result. My email has been hack by him, with his IP address located on my accounts log files... but still the police can't do anything with them. I've had my doorbell rung at midnight, and a few minutes later the window of the car parked in front of my house was smashed. The list goes on and on.

The police advised me that this since the crimes were to numerous to be random to file for a TRO, and when I did the judge agreed. But now making the TRO permanent is in jeopardy because of this lawyer... and my hearing is this coming Tuesday.