Domestic violence is a criminal offense in California and a victim can file a lawsuit against an offender through the civil justice system. Here is how to file a domestic violence lawsuit in California.
To file a lawsuit for domestic violence, an individual should contact an attorney and decide which charges they will bring against their offender. Once the claims have been decided, an individual should gather all the evidence that will help their case. After gathering all evidence and building their case, an individual must pay a fee to file their claim with the court and begin their domestic violence lawsuit.
An Individual Must Prove Their Eligibility to Sue for Domestic Violence
Before filing a claim, an individual must ensure that they can file as victims of domestic violence. If a person does not meet the criteria for a victim of domestic violence, they must file a lawsuit under different grounds. The following individuals can claim that they have been victims of domestic violence:
- A spouse
- A former spouse
- A fiance
- A former fiance
- A cohabitant
- A former cohabitant
- A current partner who the individual is in a serious relationship with
- A former partner that an individual had a serious relationship with
- A person with whom the individual shares a child with
- A person with whom the individual is expecting a child with
- The child of the individual who has committed the domestic violence
- An individual who is related to the offender by blood or marriage
Deciding Which Statue to File Under
An individual will choose the personal injury claim they file depending on the type of abuse that the individual suffered. Based on an individual’s situation they may file for:
- Assault
- California Penal Code 13700b
- An individual may file for an occurred/attempted assault
- Battery
- California Penal Code 273.5
- Sexual battery
- California Penal Code 243(e)(1)
- Intentional infliction of emotional distress caused by threats
- California Penal Code 422
- Elder Abuse
- California Penal Code 368
- Stalking
- California Penal Code 646.9
- Child Endangerment
- California Penal Code 273a
- A parent must do this on behalf of their child, since a minor (an individual under 18 years of age) cannot file a lawsuit.
An individual is not limited to these claims; they are simply the most common forms of domestic violence.
Related: Domestic Violence Laws in California
How to File a Domestic Violence Lawsuit in California
Once an individual has established the grounds under which they will sue, they must take their case to the civil court and file a claim. An individual who is filing a domestic violence lawsuit in California should expect to experience the following process:
1. File for Divorce
Before filing a civil lawsuit against a spouse, an individual should consider filing for divorce. If an individual is seeking monetary compensation for the abuse that they endured, it will be difficult to enforce a court order given that married couples’ assets are treated as jointly-owned.
2. File a Restraining Order
Filing a restraining order is not required, but it is recommended. A restraining order will protect the victim from further harm and may aid their case against the offender.
Related: Domestic Violence Restraining Orders in California
3. Hire an Attorney
A plaintiff is the one who seeks damages and is responsible for acquiring and paying their own legal representation.
4. File the Complaint
The complaint should include the individual’s claims for domestic violence, the evidence for their case, and list the damages they seek for what they endured. An individual must pay a fee when filing with the court— this fee is not included in the attorney’s fees. If an individual cannot afford to pay the fee to file their lawsuit, they may be eligible for a fee waiver.
5. Make Copies
The court will keep the original papers that the individual filled and signed when filing their claim; therefore, at least 2 copies must be made (one for the plaintiff and one for the defendant).
6. Service of Process
The plaintiff (the individual suing for domestic violence) must serve the defendant (the offender). An individual cannot directly serve another person themself, so they must have an officer or process server deliver the papers to the defendant. A fee must be paid to the officer who serves the papers, but the fee can be covered by the fee waiver.
7. Answer
The defendant will need to answer the complaint that was served. The individual can either deny that they committed domestic violence, admit to it, or provide a defense.
8. Discovery
The plaintiff and defendant will gather their evidence and build their case. The plaintiff should prove that physical, emotional, and/or mental harm was endured. For cases involving claims of mental harm, a medical evaluation by a psychiatrist will typically be required.
9. Judgment
Based on the evidence that arose during the discovery process, a verdict will be reached.
The judge will determine the amount of damages to be granted to the plaintiff as fair compensation for the injuries endured.
What Damages Can Be Granted in Domestic Violence Cases?
If a civil claim is successful, a victim is entitled to receive compensation from their offender for the injuries sustained. The judge can order compensation for:
- Medical expenses
- Lost wages
- Embarrassment
- Emotional distress
- Pain and suffering
- Attorney fees
FAQS
If my child was abused by their other parent can I sue them?
In cases involving a minor, a parent is responsible for taking action since their child cannot. Typically, criminal charges will be brought against a parent who has abused their child, but an individual can choose to pursue a civil suit on behalf of their child as well.
Related: How Domestic Violence Affects Child Custody in California
What if I have no evidence of domestic violence?
Evidence is always ideal. Under the civil justice system, domestic violence is a tort, so the standard of proof is not as high. An individual needs to prove that they suffered as a result of domestic violence and can do so by proving emotional suffering.
Can I file a civil lawsuit after the criminal court failed to convict my domestic abuser?
The civil and criminal systems are independent of each other. If the criminal court fails to convict, you can still seek damages under the civil court.
Contact Her Lawyer
If you or a loved one is looking to file a domestic violence lawsuit in California, contact us. We’ll get you in touch with the most qualified attorney for your unique legal matter. Get your free consultation with one of our California Domestic Violence Attorneys today!