Legal Question in Criminal Law in California

Anybody with the filing fee can sue anybody for anything. The big question is: even if you win, what will it get you?

If your husband sues her, that means there will be ANOTHER file at the courthouse that contains these allegations. In order to prevail, your husband would bear the burden of proving that she is lying... and that can be hard to prove. Even if he wins, the restraining order documents will still be in the court file of that case.

If he wins a lawsuit, what will he get? Does she have money? Would you even be able to recover your legal fees, which could run into tens of thousands of dollars for a case that could take years to work its way through the courts?

More than 200 years ago, the philosopher Voltaire said, "I was only ruined but twice: once when I lost a lawsuit, and once when I won one." His point -- that suing somebody is just as stressful as getting sued yourself -- is even more true today than it was then.

Finally, although you can obtain these documents, employers are not supposed to in the course of checking out an an employee. California Labor Code �432.7 says employers can't ask about any arrest that didn't result in a conviction, inquire about it from other sources or use it in a hiring decision.

As Mr. Marshall pointed out very well, suing her will accomplish nothing, and maybe make the problem worse. I have a different approach to your husband's problem: try to seal and destroy the restraining order file and all indexing to it. The only catch is that this is only possible if in addition to getting the temporary restraining order, she had him arrested too.

My area of expertise is factual innocence petitions, and if one were granted, the family court TRO file could be sealed and destroyed. I have done it. But it does not apply unless there was an arrest. So if you think he qualifies, you can read more at my website here:

http://lawyer-expungement.com/petition.htm

http://lawyer-expungement.com/results.htm

Good luck.

I don't see how your husband could win a libel lawsuit based upon what his ex said in her court filings. Statements made in the course of litigation are generally privileged and cannot form the basis of a judgment for libel or slander, no matter how outrageous they may be.

He might be able to win a claim of abuse-of-process or malicious prosecution, but he would have to prove that he won on the merits. Winning because the other side defaulted can qualify under some circumstances, but I would need to know more about the case before I could assess your husband's chances. Besides, As Messrs. Marshall and Dinday have noted, filing another lawsuit might end up doing more harm than good.