Litigation Privilege: Why Restraining Order Fraud Is Pandered to and Why the Falsely Accused Are Denied Recourse to the Law for Vindication, Relief, and Recovery of Damages

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“Fraud is deliberately deceiving someone else [including a judge] with the intent of causing damage.”

—Cornell Legal Information Institute

“Generally, lying during trial (or any other part of litigation) is expected to come out at the time of trial. This means an action against someone for lying during a prior proceeding would fail because even lies are protected by the litigation privilege. You have to catch them at the time; you cannot attack them collaterally (in a different proceeding).”

—Attorney Catherine Elizabeth Bennett

Here are examples of restraining order fraud and repeated abuse of process (others are here and here, and comments and posts on this site are replete with them).

Here is the obstacle to obtaining relief from fraud committed by restraining order petitioners that the falsely accused face no matter how high up the judicial chain they muster the fortitude to climb:

  1. So-called protective orders were designed to allow battered women to apply directly to a judge for relief from household violence and intimidation. Their origin harks back to the late ’70s/early ’80s. When these orders were conceived 30 or 40 years ago, domestic violence was hush-hush, and (actual) victims faced alienation from their families for airing dirty laundry in public and rocking the boat. They faced, as well, the possibility of their claims’ being discounted by police or even ridiculed (compounding their misery and humiliation). So the middlemen (i.e., cops and prosecutors) were cut out of the process. Thus could allegations be made and ruled upon in the absence of any investigation. It seemed a reasonable stopgap at the time. Over the decades since, despite radical changes in how claims of domestic violence are received by the public and law enforcement (due in no small part to the investment of billions of federal tax dollars), the standards for substantiating an assertion of victimhood remain lenient, while what qualifies as grounds for a court injunction has steadily broadened. People now get orders against their friends, lovers, neighbors, moms, dads, kids, etc., and violence need not even be alleged; some claim of apprehension usually suffices. The process has morphed from a life-preserver for battered women with no other way out of a hellish situation to a sop to satisfy any complainant who fills out an application. Court policy pretends that anybody who walks into a courthouse with a beef (real or not) deserves a private audience with a judge to shield him or her from the terrors of public scorn or disapproval from the cops. Anyone with an ax to grind, that is, is treated like a battered woman circa 1979. So institutionalized has the process become, and so profitable to so many (both financially and politically), that no one questions whether this is ethical. So the restraining order process has become a game, a game played according to anachronistic rules. Maximum latitude is given to anyone (no fee or i.d. required) to litigate any claims s/he wants in a backroom conference with a judge, and rulings are issued ex parte, which means the person who’s accused is prejudged sight unseen. The due process rights of the accused are scotched. Grants under the Violence Against Women Act will explicitly forbid the use of lie detectors. The dictate is purely rhetorical; it’s meant to stress that what a complainant alleges shouldn’t be doubted. This expectation extends to any petitioner. Hence judicial scrutiny is minimal, and judges may actually bristle when the falsely accused allege that petitioners are lying. This is called fair and just.
  2. The idea behind “litigation privilege,” which basically ensures that whatever a litigant or his or her attorney alleges is protected from liability (from charges of defamation, for example), is the same: Accusers need to feel secure to air “the facts” without fear of prosecution.

The protections sketched above were not put in place to defend the right of any fraudster to falsely allege anything off the top of his or her head against a target of malice in a court of law. Perjury, after all, is a statutory crime. Lying isn’t condoned by the law, but it is swallowed by cops and defended by judges.

They’ve had their priorities impressed upon them in no uncertain terms.

So emphatic is the priority to give accusers the benefit of the doubt that people who’ve been wrongly accused have little or no credibility with judges and absolutely no recourse to sue for damages caused by false allegations (to reputation, employment, enjoyment of life, and health). The court doesn’t recognize there are any damages to being falsely accused of stalking, for instance, or violent threat, sexual harassment, assault, or even rape. False accusations that are dismissed as baseless are harmful enough (the stresses they cause are beyond quantification). When false allegations stick, the guilt of the accused is presumed, and subsequent legal actions they may venture to undertake (lawsuits and appeals) may be summarily tossed for lacking merit. In contrast, the merit of rulings that are typically the products of procedures lasting mere minutes isn’t questioned. Some judges will even hold that accusations litigated in court can’t constitute perjury because of the “litigation privilege” (i.e., because they were uttered in court instead of on, say, Facebook or the radio, they can’t be lies).

Accusers (all of them identified with battered women of 1979) must be free to claim whatever they want without fear of risk or blame—that’s the overriding precept. Translated, this means the court’s position is that people must be allowed to lie and snooker the court as they choose…and anyone who’s lied about be damned.

Copyright © 2015 RestrainingOrderAbuse.com

*From “‘Out of Left Field’: The Litigation Privilege Defense to Adverse Party Suits” by attorney Keith A. Call (emphases added):

Despite some authority characterizing the litigation privilege as “absolute,” it is certainly not without limits. There are some claims for which the litigation privilege is usually not a defense. Such claims may include malicious prosecution, fraud, criminal perjury, suborning perjury, and professional discipline. See, e.g., Hagberg v. Cal. Fed. Bank FSB, 81 P.3d 244, 259 (Cal. 2004) (the litigation privilege “operates to bar civil liability for any tort claim based upon a privileged communication, with the exception of malicious prosecution”); Bushell v. Caterpillar, Inc., 683 N.E.2d 1286, 1289 (Ill. Ct. App. 1997) (litigation privilege does not provide immunity from criminal perjury); Hawkins v. Harris, 661 A.2d 284, 288 (N.J. 1995) (litigation privilege is not bar to professional discipline or criminal perjury); Dello Russo v. Nagel, 817 A.2d 426, 433 (N.J. Super. Ct. App. Div. 2003) (litigation privilege does not insulate against malicious prosecution or professional discipline); N.Y. Cooling Towers, Inc. v. Goidel, 805 N.Y.S.2d 779, 783 (N.Y. Sup. Ct. 2005) (refusing to dismiss claims against adverse party’s attorney based on fraud and collusion); Clark v. Druckman, 624 S.E.2d 864, 870-72 (W. Va. Ct. App. 2005) (litigation privilege does not immunize attorney from claims of fraud or malicious conduct).

9 thoughts on “Litigation Privilege: Why Restraining Order Fraud Is Pandered to and Why the Falsely Accused Are Denied Recourse to the Law for Vindication, Relief, and Recovery of Damages”

  2. The following facts involve a restraining order . A restraining order not sought or secured by either my now ex wife or myself. It was brought about by her suspended from practice attorney Gregory E .Grahn. Grahn having become suspended from practice on 2 separate date spans during the unbelievable 2.5 years the attorneys drug this divorce on for.

    It had become readily apparent to me after just a month and a half into this divorce, that both attorneys had become fixated on all of our real estate assets, our liquid cash remaining and some how converting the proceeds derived from the liquidation of them that both attorneys were insisting upon, from our possession into theirs. Having them through their scare tactics manage to convince us to relinquish control of our financial affairs over to the attorneys via power of attorney and their trust account.

    At this point I felt that after 20+ years of marriage and continuous hard work & careful planning, it was ridiculous to allow it to be wasted or taken from us for this divorce. I felt that my wife and I should be able to gather some dignity and common sense necessary for a reasonable & realistic split of our assets and complete this divorce ourselves.

    So I went to my attorney Geoffrey C.Cross and ask him to stop the divorce and withdraw from the case. He was openly furious and tried his best to convince me to not go through with my wishes. I insisted and remained firm in my want to approach this divorce with common sense. Mr. Cross finally agreed to comply with my request.

    To my surprise , within 36 hours the attorneys had managed to convince my wife to file for divorce herself this time retaining the service of Mr. Grahn.

    Mr. Cross was lightening quick to notify me of this new turn of events and convince me to retain him as council. A major mistake on my part.

    I was not thinking clearly at this time due to me trying to take care of the needs of both our teenage son and daughter that i had custody of, trying to continue to successfully run our used car dealership, taking care of the other rental houses on lake Whitman where our own private residence was also located. With Lake Whitman located out in a rural area miles from Tacoma, it was necessary for me to drive the kids to their school events and other social activities. They were 13 & 14 years old at this time , so not licensed to drive themselves. But at an age where we all become very active with sporting events, our friends, etc

    We also had a beach house down in Gold Beach Oregon. Including approx.3/4 of a city block of commercial property located right on Hyw. 101 in the center of down town Gold Beach with my only neighbor on the block being Wells Fargo Bank. We had also just made a deal and put money down on a different large piece of commercial property located one block South of our other property also on Hyw. 101 just prior to going into this divorce.

    With our intention of doing a 1031 reverse property exchange using one of the rental lake homes on Lake Whitman for the other exchange property. We had already hired the accommodating title company who would facilitate this 1031 property exchange.

    having my wife be in total abandonment of both of our children, the used car dealership , our marriage and the home. I found myself becoming overwhelmed with responsibilities working constantly 7 days a week.

    Suspended from practice or not, Grahn continued to practice Law while temporarily unlicensed to do so. With the dates of Grahn’s suspension from practice clearly listed on the Supreme Court Records and the WSBA records. Having both the Bar and the Supreme Court notify the Pierce County Superior Court concerning Grahn’s suspension from Practice. Instructing the Superior Court to stop Grahn if he continued to attempt to practice Law during the Official dates of suspension identified within these notices.

    Even though notified of Grahn’s suspension dates and instructed to stop Grahn, the Official dates of his continued appearances in Superior Court proves unequivocally that not only did Grahn have no intention of complying with the Official required conditions surrounding his suspension from Practice of Law . Nor did the superior Court professionally attend to this matter so as to prevent these fraudulent appearances during our divorce proceedings, so as to prevent this loss of time, any other injuries directly resulting from this fraud adversely effecting the litigants who were paying for all of this litigation and court proceedings . Nor did the Superior court ever disclose the truth to us being the directly involved litigants, about these fraudulent appearances by Grahn in our proceedings or their unprofessional negligence for allowing it to occur multiple times.

    Unbeknownst to either my wife or myself, when the Superior Court did finally realize that Grahn had continued to practice Law unlicensed, making a mockery of the Court & committing Fraud upon the court, the court finally stopped Grahn.

    But instead of honoring the litigants legal Right to Know, the Superior Court chose to defraud us both, commit Federal mail fraud by sending out fraudulent notices to us concerning Grahns up coming scheduled absence from the case. Never admitting their unprofessional negligence or Grahn’s illegal fraudulent prior appearances in the proceedings of our divorce Case. Doing their best to word this notice to make it appear as if Grahn was going on a vacation that was scheduled long before his involvement representing my wife in our divorce Case.

    With it stating clearly in written Law, that any proceeding infected with fraud , infects the entire Case with Fraud. Therefore it is the prescribed Duty of the court to dismiss the entire case immediately. Stating that a new Case must be filed and allowed to start fresh so as to provide honest legal services and Due process of Law.

    However, the Pierce County Superior Court chose not to abide by the law , never dismissing our Case nor informing us of the fraud or the Superior court’s liability for their unprofessional negligence allowing it to occur multiple times. Consequently wasting months and months of our time, thousands and thousands of dollars of our money spent for attorney fees that now were all spent for nothing other than to be defrauded while wasting our time and emotions producing nothing more than Null & Void Court orders.

    Required to start all over again and continue to pay more attorney fees to go through pretty much all of the same steps required to accomplish this divorce.

    Having the Pierce County Superior Court dead set on prioritizing their own benefits by avoiding liability ,accountability including public disclosure regarding their bumbling negligence, having to reimburse us for all of the attorney fees , our loss of time, or the major delay in being able to start rebuilding our lives after divorce. Last but most certainly not least, the constant ongoing upheaval environment resulting from the never ending divorce effect and directly resulting financial hardship on us that greatly reduced my ability to provide as planned for our juvenile children.

    Clearly having it demonstrated by the Superior Court at what ever cost to our children and either of us, determined to continue to make my wife and I the patsies for the Superior Court’s own unprofessional negligence, continued refusal to uphold the Law, abide by the Law, uphold our Rights or provide Honest Legal Services.

    By this time, both attorneys despised me for catching on to their greed fueled sights set on our assets . As to just how resentful both of the attorneys were for me attempting to prevent them from bleeding us dry, I had yet to realize.

    The whacked out Fraudulent attorney Grahn, absolutely hated me and would constantly do anything he could think of to make sure the coals were constantly stirred in this divorce fire. Keeping my wife and I at constant odds and infuriated .

    Having the attorneys fear only that my wife and I manage to be reasonable with each other , bringing this divorce to an end.

    So Grahn himself insisted that a restraining order be placed upon me for the following 20 yrs. I couldn’t believe what they had just done! I had been consistently too busy to do anything that would justify a restraining order. But it did accomplish what the attorneys wanted , that being a preventive barrier between my wife and I communicating, or comparing notes about the bullshit we were being fed by both of these greed fueled money grubbing attorneys with blood hound noses for other people’s money .

    In fact I just recently heard that the DEA , the Treasury Dept.and local Law enforcement had decided to retire all of their sniffing dogs that are often times used on these large drug and counterfeit busts. Deciding to replace the dogs with attorneys due to their superior ability at sniffing out other peoples money!

    Having the only problem with this so far being the attorneys wanting to keep everything they sniff out !

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  3. Hi Todd, My Petition against Falsified Restraining Orders is up on Change.org. Over the months since I began to post on here about fighting against them, despite my fears, I finally got angry enough to get it done. I kept trying to figure out how to do it, but today I just decided it was time to stand up to the bullies for once. It is still scary because they are so close and just evil enough to try something else. But the difference is that last time I was just paralyzed to do anything on my own behalf. I realize that even in the defense I had prepared, I was totally seeing myself as a victim.

    What happened to change all this was that I had to go to court a week ago against some drug dealers who had taken advantage of me in my park, telling me they could fix my car, and then leaving it in a non-running condition. One of the drug dealers lives next door to me and he recommended them. Although he is what he is, he had given the appearance of being a fairly decent neighbor. When this happened, I took them to small claims court. He told me he would be a witness for me since it was his responsibility for telling me how they could do the job at a price that I could actually manage financially. I gave him a supoena, but didn’t retain a copy. So the day came for him to go as my witness. He had come and asked for food the day before and had assured me that he would be ready in time. But when it was time, he was a total moral coward, and showed his true colors. I could not get him to come out of his home or open the door to talk to me. And of course the people going to court lied and now are trying to claim I owe THEM money.

    It was the last injustice anyone is going to do to me. Like you and like probably most of the people who have dealt with false restraining orders, I could no longer live in shame, in hiding, in wondering if it would affect my ability to work. I “came out” if you will at my university and work and church. I think part of the horror of falsified restraining orders is that there is a shame and a need to hide out, just as some of us have experienced from being victims of family abuse of various types.

    So this is step one. I said I was going to look for Constitutional attorneys who represent civil rights and Constitutional issues. I found one for California and it says he does Pro Bono work for civil rights cases, and some of the attorneys I found work with lots of volunteer attorneys working on similar cases. I am shaking, but I am still standing, and at 74 years young, that is quite an accomplishment. I have decided that besides being a Criminal Justice major who wants to work with juvenile delinquents, I am also going to be a strong activist and advocate for the following: special needs/emotionally disturbed children and adults, falsified restraining orders and other Constitutional issues, police abuse of power, and abuses in our legal system and the courts. I don’t know how long I have left in this world, but I am going to make what I do have left count for something.

    Thank you for being a big inspiration and perhaps one of the steps in beginning to heal. Anne Copeland

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    2. Best wishes in your endeavors, Anne. I appreciate your determination and your maintenance of faith in the system. Resist appealing to the police and courts, though, unless the circumstances are dire (you know what accusations arouse in people). I want you to realize your ambitions, and when you’re isolated and powerless, it’s just too easy to get steamrolled (and steamrolled again). I think you’re doing the right things, incidentally. It hurts nothing to contact people and seek compassion and assistance, and it may help a lot.

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  4. I will be more than happy to pay any attorney to get my Santa Clara County, CA TRO taken off of the internet! ANY TAKERS!

    2010, she calls me in Denver where I had a 2 bedroom apartment crying the blues that she had a big fight with her boyfriend and requested to stay with me for a little while.

    I gave in as we were married for 23 years and had remained friends.

    I fly out to San Jose the next day and we drive directly from the airport to U-Haul, pick up a truck, and are on the road in a couple of hours.

    Five days later I move her into her own bedroom and put her furniture in storage.

    Things went fine until she wanted this dog up in Wyoming that had some issues.

    We drive up to get the dog and then after getting it home, I find out that the issues… the dog would just pee on the carpet at random.

    Told her the dog had to go, she’s not happy but we surrendered it to the local shelter.

    Next thing I know there is a knock on the door with her son ready to drive her back to SJC.

    Not a problem until two weeks later when the Sheriff delivered the TRO that stated I had to give up my guns and appear in San Jose at a hearing in 7 days.

    Why, I asked…don’t we have laws in Colorado? Should not the case be tried in Denver? Apparently not, lost that argument.

    Went to SJC, had a 10 minute hearing in front of, what else, a woman Judge. My Ex had a lawyer by the good old folks at VAWA providing the funding. I searched over 30 attorneys and no one would touch the case pro-bono. (She took any spare money I had moving her)

    Then we found out that she can talk to me, I just can’t talk to her. (Great System)

    We found a way to communicate…though the Internet on one of those game shows. We would pass notes back and forth. She did not have a problem with that. The son found out and over his I-phone requested an extension on the court order. Turns out, truth be told, that the son was the one that wanted her to get the TRO. She never had any intention of doing such a thing. The son apparently was angry because he asked me what happened between his mother and myself. I responded by asking him if he was sure that he really wanted to know the truth about his Mom. Well, I told him the truth, I told him that his mother was screwing around on me every chance that she had.

    That did not sit well with him…and so, here we are… TRO. Every lie in that 1st and 2nd complaint was written by him. He forced his mother to go along with it only by threatening that he would not want her to be around him any more and that she would have to move out of his house.

    With all the postponements, when we finally got a ruling on the attempt to continue the first TRO which only had two weeks left on it, the Judge, a new Woman Judge ruled against me…would not even let me speak.

    So long story short, all the delays in between the appearances, I now received an additional 5 year TRO causing my total TRO to be about 7 years.

    I dont give a S**t whether I ever see her again but I thought that this was a country of laws. There was never any violence between us, yet this Judge violated my Second Amendment rights once again.

    So…lesson learned. Never even raise your voice to your significant (???) other. When she finds out how much money she can get out of all the Federal funding inclusive of cars, a place to stay, educational programs, etc. etc. she will come after you without a second thought.

    The entire law is wrong..violates 1,2,6 and probably others. And the worse part of it is that any woman you want to date is going to plug your name into the Internet before they consider going out with you. Or, the son or daughter or girlfriend of their Mom will…just because they want to make sure she’s not going out with a “Bum”.

    My life is over. I have no social life, I have no place to turn. Not one lawyer will help. Not one Congressman or Senator will go against all the women that started all of this in 1994. And why? The only reason that I can come up with is that they don’t want to get “Cut Off”. They have no balls and could care less about what is right or wrong.

    Finally, this is a bad law. I think if I remember the VAWA statute correctly the word, “man or men” is mentioned one time. I am FOR anyone who has any ideas on how to overturn this law and at least give us our “Rights” back. I can understand it if you are a wifebeater or something like that but the word, “HARASSMENT” is so ambiguous. How can any Judge make an honest decision?

    Please everyone, Chime In. This could happen to you! If your wife gets a TRO on you, you are in, “The System”. You no longer will have a job… friends will shy away from you. And, even your own family will distance themselves from you.

    SOMEBODY, DO SOMETHING TO END THIS MADNESS!

    Please.

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