Bob Benjy, Esq.
Civil Harassment Restraining Orders ~ A Powerful and Speedy Tool for Victims
Updated: Oct 30, 2020
A Civil Harassment Restraining Order ("CHRO") is a powerful tool that allows victims of stalking and harassment ("Petitioner") to get injunctive relief ordering the stalker/harasser ("Respondent") to stop her or his misconduct. Such orders carry the force of law and, if willfully violated can result in criminal sanctions against the restrained individual.
Section 527.6 of California's Code of Civil Procedure provides the statutory regime for issuance of such orders, allowing for the protection of the Petitioner from future harm. These types of cases are designed to be speedily adjudicated and should resolve in relatively short order (certainly when compared to regular civil litigation, which may take twelve or more months to resolve). These types of cases may only be brought by individuals and are not available for protection of entities. (See Diamond View Ltd. v. Hertz (1986) 180 Cal.App.3d 612, 616-617.)
A CHRO may include: (a) Conduct Orders - prohibiting harassment, intimidation, attacking, striking, assaulting, battering, threatening, making annoying calls, etc.; and/or (b) Stay Away Orders - legally requiring the Respondent to stay a certain distance away from the Petitioner.
If the Petitioner prevails (i.e., if injunctive relief is granted), she or he may have the order broadly applicable to both herself or himself and her or his named family and/or household members so long as there is a sufficient evidentiary nexus bet Respondent and those additional individuals. (See Sec. 527.6(c).)
CHROs, however, lie only to prevent future harm -- and are not designed for purposes of punishing Respondent. So the Petitioner must establish that great or irreparable harm would result to the Petitioner if an order is not issued because of the reasonable probability that future harm is likely to occur. (See Russell v. Douvan (2003) 112 Cal.App.4th 399, 401-404 (trial court erred in issuing order based on a single act of violence without finding threat of future harm).) Similarly, a change in circumstances at the time of the hearing may render injunctive relief moot or unnecessary. (See Russell at 401.)
To win, the plaintiff must show that she or he is the victim of "harassment," a term that is defined in the code section as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose." In addition, for a problematic "course of conduct" to count as harassment, it "must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause [her or him to suffer] substantial emotional distress ...." (Sec. 527.6(b)(3).)
A "course of conduct" is a "pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mail, interoffice mail, facsimile, or email." (Sec. 527.6(b)(1).)
Petitioner's burden of proof is "clear and convincing evidence," which means more than the usual 50.1%+ known as the "preponderance of evidence standard" - but less than "beyond a reasonable doubt" standard utilized in criminal cases. (See Sec. 527.6(i).)
Judges handling civil harassment restraining order litigation are expressly given authority under the code section to receive testimony at the hearing and also to make an independent inquiry concerning the underlying facts in order to determine whether or not to issue the requested injunction. The court may not deny any party from presenting oral testimony at the hearing. Contrary to how evidence rules usually work, under the statute that control CHROs the Court is permitted to accept hearsay evidence in these cases. (See Kaiser Found. Hosps. v. Wilson (2011) 201 Cal.App.4th 550, 555-558.).
Injunctions issued under the section may last as few as twenty-one (21) days (i.e., a Temporary Restraining Order; see Sec. 527.6(g) and as long as 5 years in the case of a permanent injunction issued after a hearing (subject, of course, to renewal if necessary and appropriate). See Sec. 527.6(j)(1).
The prevailing party (whether Petitioner or Respondent), may - in the discretion of the court, be awarded costs and attorney's fees, if any. (See Sec. 527.6(s).) To get get fees awarded, however, a formal motion will be required. (See C.R.C. 3.1702.) Costs must be claimed by the filing of a Memorandum of Costs. (See C.R.C. 3.1700.)
Where the Respondent wins, fees and costs may be awarded to him or her against the Petitioner even if the action was brought in good faith and is not frivolous. (See Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 800-803.) On the expiration of the TRO or the Petitioner's dismissal of the action, the court retains jurisdiction to grant the Respondent's motion for attorney's fees and costs. (See Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1774-1777.)
However, unlike regular civil cases, failed CHRO attempts do not expose the Petitioner to risk of a later lawsuit by the Respondent for the tort of malicious prosecution. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1566 (“a cause of action for malicious prosecution may not be based upon an unsuccessful civil harassment petition.”))
"The risk of subsequent litigation might dissuade victims of serious harassment from seeking the remedy. Those that were not discouraged would be subject to the possibility of serious financial harm in the future. On balance, these concerns outweigh the concern that an aggrieved defendant might be deprived of the additional remedies a malicious prosecution action would provide in egregious situations."
(Siam, 130 Cal.App.4th at 1573.)
Where a petitioner makes allegations of violence, staling, threatened violence, or having been placed in reasonable fear of violence may, in certain instances, avoid having to pay the usual filing fee. (See Sec. 527.6(y).) This filing fee waiver provision also applies equally to a Respondent responding to a petition that alleges any of the foregoing.
Once an injunction is issued (whether a TRO or permanent injunction), any willful disobedience of the terms of the order is punishable as a crime under the Penal Code as a misdemeanor and may result in fine of up to $1,000 and up to 1 year in jail. The consequences may be greater in violation of the order results in physical injury.
If you or any of your friends or loved ones has been attacking, harassed, stalked, violently injured, or threatened with serious violence, please discuss your case as soon as possible with a competent attorney familiar with CHROs.
Benjy Law Corporation is happy to consult on your matter. You may contact us at (310) 203-2650 to schedule a free 45 minute meeting to determine your rights and remedies.