from Official California Bench Guides for Judges http://www2.courtinfo.ca.gov/protem/pubs/bg20.pdf
CALIFORNIA JUDGES BENCHGUIDES
Benchguide 20
INJUNCTIONS PROHIBITING CIVIL
HARASSMENT AND
WORKPLACE/POSTSECONDARY
SCHOOL VIOLENCE
[REVISED 2010]
ABOUT CJER
The California Center for Judicial Education and Research (CJER), as the Education Division of the Administrative Office of the Courts (AOC), is responsible for developing and maintaining a comprehensive and quality educational program for the California judicial branch. Formed in 1973 as a joint enterprise of the Judicial Council and the California Judges Association, CJER supports the Chief Justice, the Judicial Council, and the courts by providing an extensive statewide educational program for judicial officers and court staff at both the trial and appellate levels. It includes orientation programs for new judicial officers, court clerks, and administrative officers; continuing education programs for judicial officers, court administrators, and managers; an annual statewide conference for judicial officers and court administrators; video and audiotapes; and judicial benchbooks, benchguides, and practice aids.
CJER GOVERNING COMMITTEE
Hon. Ronald B. Robie, Chair
Court of Appeal, Sacramento
Hon. Robert L. Dondero, Vice-Chair
Superior Court of California, County of San Francisco
Hon. Gail A. Andler
Superior Court of California, County of Orange
Mr. Stephen Anthony Bouch
Executive Officer
Superior Court of California, County of Napa
Ms. Tressa S. Kentner
Executive Officer
Superior Court of California, County of San Bernardino
Hon. Barbara A. Kronlund
Superior Court of California, County of San Joaquin
Hon. William A. MacLaughlin
Superior Court of California, County of Los Angeles
Mr. Michael A. Tozzi
Executive Officer
Superior Court of California, County of Stanislaus
Hon. Theodore M. Weathers
Superior Court of California, County of San Diego
Hon. Elizabeth Allen White
Superior Court of California, County of Los Angeles
Hon. Arthur A. Wick
Superior Court of California, County of Sonoma
Advisory Members
Hon. Socrates Peter Manoukian
Superior Court of California, County of Santa Clara
California Judges Association
Mr. William C. Vickrey
Administrative Director
Administrative Office of the Courts
ORIGINAL AUTHOR
Hon. Roland L. Candee
Superior Court of California,
County of Sacramento
CJER PROJECT STAFF
Barry Harding
Senior Attorney, Publications
Iris Okura
Senior Editor
BENCHGUIDE CONSULTANT
Hon. Roland L. Candee
Superior Court of California,
County of Sacramento
Editorial comments and inquiries: Barry Harding, Senior Attorney 415-865-7824
fax 415-865-4335
© 2010 by Judicial Council of California/Administrative Office of the Courts
Published March 2010; covers case law through 47 C4th, 180 CA4th, and all legislation to 1/1/2010
20–1
CALIFORNIA JUDGES BENCHGUIDES
Benchguide 20
INJUNCTIONS PROHIBITING CIVIL
HARASSMENT AND
WORKPLACE/POSTSECONDARY
SCHOOL VIOLENCE
I. [§20.1] SCOPE OF BENCHGUIDE
II. PROCEDURAL CHECKLISTS
A. Civil Harassment
1. [§20.2] Checklist: Issuing Temporary Restraining Order
2. [§20.3] Checklist: Conducting Hearing on and Issuing
Injunction
B. Workplace Violence
1. [§20.4] Checklist: Issuing Temporary Restraining Order
2. [§20.5] Checklist: Conducting Hearing on and Issuing
Injunction
C. Off Campus Threats to Postsecondary School Student
1. [§20.6] Checklist: Issuing Temporary Restraining Order
1. [§20.7] Checklist: Conducting Hearing on and Issuing
Injunction
III. APPLICABLE LAW
A. [§20.8] General Background
B. Temporary Restraining Order and Injunction Prohibiting
Harassment (CCP §527.6)
1. [§20.9] Who May Seek Relief
2. [§20.10] Harassment Defined
3. [§20.11] Issuing a Temporary Restraining Order
4. Subsequent Hearing
a. [§20.12] Time for Hearing
b. [§20.13] Service on Defendant
c. [§20.14] Defendant’s Response
d. [§20.15] Continuance
e. [§20.16] Evidence
California Judges Benchguide 20–2
f. [§20.17] Presence of Support Person at Hearing
5. Issuance of Injunction
a. [§20.18] Findings
b. [§20.19] Award of Costs and Fees
c. [§20.20] Duration of Injunction
d. [§20.21] Persons Covered
e. [§20.22] Forms
f. [§20.23] Mutual Injunctions
6. [§20.24] Transmission of Order to Law Enforcement
Agencies
7. [§20.25] Subsequent Award of Fees and Costs
8. [§20.26] Effect of Defendant’s Bankruptcy Petition
9. [§20.27] Violation of Injunction
10. [§20.28] Statute’s Effect on Other Remedies
C. Temporary Restraining Order and Injunction Prohibiting
Workplace Violence (CCP §527.8)
1. [§20.29] Who May Seek Relief
2. [§20.30] Potential Defendants
3. [§20.31] Unlawful Violence and Credible Threat of
Violence Defined
4. [§20.32] Issuance of Temporary Restraining Order
5. Subsequent Hearing
a. [§20.33] Time for Hearing
b. [§20.34] Service on Defendant
c. [§20.35] Defendant’s Response
d. [§20.36] Continuance
e. [§20.37] Evidence
6. Issuance of Injunction
a. [§20.38] Findings
b. [§20.39] Duration of Injunction
c. [§20.40] Persons Covered
d. [§20.41] Forms
7. [§20.42] Transmission of Order to Law Enforcement
Agencies
8. [§20.43] Violation of Injunction
9. [§20.44] Statute’s Effect on Other Remedies
D. Temporary Restraining Order and Injunction Prohibiting
Off Campus Threats to Postsecondary School Student
(CCP §527.85)
1. [§20.45] Who May Seek Relief
2. [§20.46] Credible Threat of Violence Defined
3. [§20.47] Issuance of Temporary Restraining Order
4. Subsequent Hearing
a. [§20.48] Time for Hearing
20–3 Civil Harassment and Workplace/Postsecondary School Violence §20.2
b. [§20.49] Service on Defendant
c. [§20.50] Defendant’s Response
d. [§20.51] Continuance
e. [§20.52] Evidence
5. Issuance of Injunction
a. [§20.53] Findings
b. [§20.54] Duration of Injunction
c. [§20.55] Persons Covered
d. [§20.56] Forms
6. [§20.57] Transmission of Order to Law Enforcement
Agencies
7. [§20.58] Violation of Injunction
E. [§20.59] Firearms Restrictions
F. [§20.60] Subsequent Malicious Prosecution Action
G. [§20.61] Anti-SLAPP Motion To Strike
H. [§20.62] Special Provisions Regarding Plaintiffs or
Defendants Who Are Minors
IV. [§20.63] SCRIPT: ADVISEMENTS TO PARTIES AT
COMMENCEMENT OF CIVIL HARASSMENT
HEARING
V. [§20.64] ADDITIONAL REFERENCES
TABLE OF STATUTES
TABLE OF CASES
I. [§20.1] SCOPE OF BENCHGUIDE
This benchguide provides an overview of the procedures for handling
requests for a temporary restraining order (TRO) and injunction
prohibiting civil harassment under CCP §527.6, workplace violence under
CCP §527.8, and off-campus threats to postsecondary school students
under CCP §527.85. It contains procedural checklists for these three
proceedings, and a summary of the applicable law. It also contains a script
the court may use at the commencement of a civil harassment hearing on
the plaintiff’s petition for an injunction to advise the parties of the matters
the court must consider in determining whether to grant an injunction.
II. PROCEDURAL CHECKLISTS
A. Civil Harassment
1. [§20.2] Checklist: Issuing Temporary Restraining Order
(1) Review the plaintiff’s petition and application. The plaintiff must
use Judicial Council form CH-100. Judges who hear these cases should
make sure that their courts make Judicial Council form CH-150,
Instructions for Lawsuits to Prohibit Civil Harassment available to
plaintiffs. This form provides specific instructions for completing the
petition.
(2) Determine that the plaintiff is a proper party to seek relief under
CCP §527.6. The plaintiff must be a natural person, not an artificial entity,
such as a corporation, partnership, or association. The plaintiff must also
be the person who has suffered the harassment, e.g., the plaintiff may not
be a parent who is suing for relief for his or her child in a capacity other
than as a guardian ad litem. CCP §527.6(a). See §20.9. If the plaintiff is a
minor, special provisions apply. CCP §374(a). See §20.62.
(3) If the plaintiff is seeking a TRO, determine whether the plaintiff
has shown reasonable proof of harassment by the defendant and that the
plaintiff will suffer great or irreparable harm if the TRO is not granted.
CCP §527.6(c). See §20.11. The “harassment” must consist of unlawful
violence, a credible threat of violence, or a knowing and willful course of
conduct directed at the plaintiff that seriously alarms, annoys, or harasses
the plaintiff, and that serves no legitimate purpose. CCP §527.6(b). See
§20.10; see also item (9) in §20.3. If the conduct about which the plaintiff
is complaining does not meet this statutory definition, the court may not
provide relief, temporary or otherwise.
(4) Issue a TRO if the plaintiff has made the required showings. Set
the matter for hearing within 15 days or, if good cause appears, 22 days,
from the date of the TRO. CCP §527.6(d). See §§20.11–20.12. Courts
must use the Judicial Council form CH-120, Notice of Hearing and
Temporary Restraining Order (CLETS). If the plaintiff shows good cause,
the court has the discretion to issue a TRO that includes other named
family or household members who reside with the plaintiff. CCP
§527.6(c).
2. [§20.3] Checklist: Conducting Hearing on and Issuing
Injunction
(1) Before the hearing on the plaintiff’s petition for an injunction,
determine that the defendant was properly served with a copy of the
petition, the TRO, and notice of hearing on the petition. Personal service is
required in the manner provided for service of summons at least five days
before the hearing, unless the court has shortened the time for service for
good cause. CCP §527.6(g). See §20.13. The proof of service should be
made on Judicial Council form CH-130.
(2) Before the hearing, determine that the plaintiff was properly
served with the defendant’s response to the petition. The response must be
filed and delivered to the plaintiff or the plaintiff’s attorney no later than
48 hours before the hearing. See Cal Rules of Ct 3.1152(d); §20.14. The
proof of service should be made on Judicial Council forms CH-130 or CH-
131.
(3) Review the defendant’s response to the petition and any cross-
complaint filed by the defendant. The defendant must use Judicial Council
form CH-110. The defendant may file a response that explains, excuses,
justifies, or denies the alleged harassment, or may file a cross-complaint
for an injunction prohibiting harassment. CCP §527.6(d). See §20.14.
(4) Before calling the calendar, advise the parties of the matters the
court must consider in determining whether to grant an injunction. See
Script in §20.63.
(5) Determine if the parties are ready to proceed. If a TRO has been
issued without notice, the plaintiff must be ready to proceed when the
matter first comes up for hearing, but the defendant is entitled to one
continuance for a reasonable period of at least 15 days or any shorter
period the defendant requests, to enable the defendant to meet the
plaintiff’s application. The TRO remains in effect until the date of the
continued hearing. CCP §§527(d), 527.6(c). See §20.15.
(6) Ask the parties if they might be willing to consider mediation of
their dispute. If so, refer the case to mediation, and advise the parties that
what happens during mediation is not admissible in any subsequent court
proceeding. See Evid C §1119.
(7) If the parties wish to proceed to hearing, advise them that they
have the right to present any relevant testimony, including oral testimony.
The court may not deny a party the opportunity to present oral testimony.
But a full-fledged evidentiary hearing with oral testimony is not necessary,
unless requested by a party. See CCP §527.6(d); §20.16. Also advise the
parties that the court may make an independent inquiry, i.e., the court may
question the parties and their witnesses.
(8) If a support person is present at the hearing with a plaintiff who is
appearing in pro per, advise the participants that the support person may
sit with the plaintiff at the counsel table to provide moral and emotional
support to the plaintiff, but may not provide legal advice to the plaintiff.
See CCP §527.6(f); §20.17.
(9) If the court finds by clear and convincing evidence that unlawful
harassment exists, it should issue the requested injunction. The plaintiff
must prove that he or she was subjected to one of the following: (a)
unlawful violence, i.e., assault, battery, or stalking; (b) a credible threat of
violence, i.e., a knowing and willful statement or course of conduct that
would place a reasonable person in fear of his or her safety, or the safety
of his or her immediate family, and that serves no legitimate purpose; or
(c) a knowing and willful course of conduct directed at the plaintiff that
seriously alarms, annoys, or harasses the plaintiff, and that serves no
legitimate purpose. In addition, the plaintiff must show that the conduct,
by its nature, would cause a reasonable person to suffer substantial
emotional distress, and that this conduct did, in fact, cause the plaintiff
substantial emotional distress. And the plaintiff must establish that great or
irreparable harm would result to the plaintiff if an injunction is not issued
because of the reasonable probability that unlawful violence will occur in
the future. CCP §527.6(b); see §20.10. The court is not required to make a
specific finding on the record that harassment exists, or to cite to the
statutory elements of harassment. See §20.18. The court must use Judicial
Council form CH-140 to issue the injunction. If the plaintiff shows good
cause, the court has the discretion to issue an injunction that includes other
named family or household members who reside with the plaintiff. CCP
§527.6(c).
(10) Determine if an award of attorney’s fees and costs to the
prevailing party is appropriate. It is within the court’s discretion to award
the prevailing party costs and attorney’s fees. See §20.19.
(11) Advise the parties of the duration of the injunction (maximum of
three years). Also advise the plaintiff that he or she may apply for renewal
of the injunction by filing a new petition at any time within three months
before the injunction expires. See §20.20.
(12) Advise the defendant that he or she may not own, possess,
purchase, receive, or attempt to purchase or receive a firearm for the
duration of the injunction. Order the defendant to sell to a licensed gun
dealer or turn in to the police any firearms that he possesses or controls
within 24 hours of receiving the order. See §20.59.
(13) Advise the defendant that he or she must file proof of sale or
surrender of any firearm with the court within 48 hours of receiving the
order. See §20.59.
(14) Advise the plaintiff that he or she must deliver a copy of the
order to the law enforcement agencies specified in the order by the close
of the business day on which the order is granted. See §20.24.
B. Workplace Violence
1. [§20.4] Checklist: Issuing Temporary Restraining Order
(1) Review the plaintiff’s petition and application. The plaintiff must
use Judicial Council form WV-100. Judges who hear these cases should
make sure that their courts make Judicial Council form WV-150,
Instructions for Petitions to Prohibit Workplace Violence, available to
plaintiffs. This form, among other things, provides specific instructions for
completing the petition.
(2) Determine that the plaintiff is a proper party to seek relief under
CCP §527.8. The plaintiff must be the employer of a person who has
suffered unlawful violence or a credible threat of violence. CCP §527.8(a).
See §20.29.
(3) If the plaintiff is seeking a temporary restraining order, determine
whether the plaintiff has shown reasonable proof that the employee has
suffered unlawful violence or a credible threat of violence by the
defendant and that the employee will suffer great or irreparable harm if
the TRO is not granted. CCP §527.8(e). See §20.32. The “unlawful
violence” must be assault, battery, or stalking. The “credible threat of
violence” must be a knowing and willful statement or course of conduct
that would place a reasonable person in fear of his or her safety, or the
safety or his or her immediate family, and that serves no legitimate
purpose. CCP §527.8(b). See §20.31; see also item (7) in §20.5. If the
conduct about which the plaintiff is complaining does not meet this
statutory definition, the court may not provide relief, temporary or
otherwise.
(4) Issue a TRO if the plaintiff has made the required showings. Set
the matter for hearing within 15 days from the date the petition is filed.
See §§20.32–20.33. Courts must use the Judicial Council form WV-120. If
the plaintiff shows good cause, the court has the discretion to issue a TRO
that includes other named family or household members who reside with
the employee, or other persons employed at any of his or her workplaces.
CCP §527.8(e).
2. [§20.5] Checklist: Conducting Hearing on and Issuing
Injunction
(1) Before the hearing on the plaintiff’s petition for an injunction,
determine that the defendant was properly served with a copy of the
petition, the TRO, and notice of hearing on the petition. Personal service is
required in the manner provided for service of summons, at least five days
before the hearing, unless the court has shortened the time for service for
good cause. CCP §527.8(h). See §20.34. The proof of service should be
made on Judicial Council form WV-130.
(2) Before the hearing, determine that the plaintiff was properly
served with the defendant’s response to the petition. The response must be
filed and delivered to the plaintiff or the plaintiff’s attorney no later than
48 hours before the hearing. See Cal Rules of Ct 3.1152(d); §20.35. The
proof of service should be made on Judicial Council forms WV-131 or
WV-132.
(3) Review the defendant’s response to the petition and any cross-
complaint filed by the defendant. The defendant is required to use the
Judicial Council form WV-110. The defendant may file a response that
explains, excuses, justifies, or denies the alleged unlawful violence or
credible threats of violence, or may file a cross-complaint for an injunction
prohibiting workplace violence. CCP §527.8(f). See §20.35.
(4) Determine if the parties are ready to proceed. If a TRO has been
issued without notice, the plaintiff must be ready to proceed when the
matter first comes up for hearing, but the defendant is entitled to one
continuance for a reasonable period of at least 15 days or any shorter
period the defendant requests, to enable the defendant to meet the
plaintiff’s application. The TRO remains in effect until the date of the
continued hearing. CCP §§527(d), 527.8(e). See §20.36.
(5) Ask the parties if they might be willing to consider mediation of
their dispute. If so, refer the case to mediation, and advise the parties that
what happens during mediation is not admissible in any subsequent court
proceeding. See Evid C §1119.
(6) If the parties wish to proceed to hearing, advise them that they
have the right to present any relevant testimony, including oral testimony.
Also advise the parties that the court may make an independent inquiry,
i.e., the court may question the parties and their witnesses. CCP §527.8(f).
See §20.37.
(7) If the court finds by clear and convincing evidence that the
defendant engaged in unlawful violence or made a credible threat of
violence, it should issue the requested injunction prohibiting further
unlawful violence or threats of violence. The plaintiff must also establish
that great or irreparable harm would result to the employee if an injunction
is not issued because of the reasonable probability that unlawful violence
will occur in the future. See §20.38. The court must use Judicial Council
form WV-140 to issue the injunction. If the plaintiff shows good cause,
the court has the discretion to issue an injunction that includes other
named family or household members who reside with the employee, or
other persons employed at any of his or her workplaces. CCP §527.8(e).
(8) Advise the parties of the duration of the injunction (maximum of
three years). Also advise the plaintiff that he or she may apply for renewal
of the injunction by filing a new petition at any time within three months
before the injunction expires. See §20.39.
(9) Advise the defendant that he or she may not own, possess,
purchase, receive, or attempt to purchase or receive a firearm for the
duration of the injunction. Order the defendant to sell to a licensed gun
dealer or turn in to the police any firearms that he possesses or controls
within 24 hours of receiving the order. See §20.59.
(10) Advise the defendant that he or she must file proof of sale or
surrender of any firearm with the court within 48 hours of receiving the
order. See §20.59.
(11) Advise the plaintiff that he or she must deliver a copy of the
order to the law enforcement agencies specified in the order by the close
of the business day on which the order is granted. See §20.42.
C. Off-Campus Threats to Postsecondary School Students (CCP
§527.85)
[§20.6] 1. Checklist: Issuing Temporary Restraining Order
(1) Review the plaintiff’s petition and application.
(2) Determine that the plaintiff is a proper party to seek relief under
CCP §527.85. The plaintiff must be the chief administrative officer of a
private postsecondary educational institution, or an officer or employee
designated to maintain order on the school campus or facility, a student of
which has suffered a credible threat of violence made off the campus or
facility that can be reasonably be construed to be carried out or to have
been carried out at the school. CCP §527.85(a). See §20.45.
(3) If the plaintiff is seeking a temporary restraining order, determine
whether the plaintiff has shown reasonable proof that the student has
suffered a credible threat of violence made off the school campus or
facility by the defendant and that the student will suffer great or
irreparable harm if the TRO is not granted. CCP §527.85(d). See §20.47.
The “credible threat of violence” must be a knowing and willful statement
or course of conduct that would place a reasonable person in fear of his or
her safety, or the safety or his or her immediate family, and that serves no
legitimate purpose. CCP §527.85(b)(3). See §20.46. If the conduct about
which the plaintiff is complaining does not meet this statutory definition,
the court may not provide relief, temporary or otherwise.
(4) Issue a TRO if the plaintiff has made the required showings. Set
the matter for hearing within 15 days from the date the petition is filed.
See §§20.47–20.48. If the plaintiff shows good cause, the court has the
discretion to issue a TRO that includes other named family or household
members who reside with the student, or other students at the school
campus or facility. CCP §527.85(d).
[§20.7] 2. Checklist: Conducting Hearing On and Issuing
Injunction
(1) Before the hearing on the plaintiff’s petition for an injunction,
determine that the defendant was properly served with a copy of the
petition, the TRO, and notice of hearing on the petition. Personal service is
required at least five days before the hearing, unless the court has
shortened the time for service for good cause. CCP §527.85(g).
(2) Before the hearing, determine that the plaintiff was properly
served with the defendant’s response to the petition. See §20.49.
(3) Review the defendant’s response to the petition and any cross-
complaint filed by the defendant. The defendant may file a response that
explains, excuses, justifies, or denies the alleged credible threats of
violence, or may file a cross-complaint for injunctive relief under CCP
§527.85. CCP §527.85(e). See §20.50.
(4) Determine if the parties are ready to proceed. If a TRO has been
issued without notice, the plaintiff must be ready to proceed when the
matter first comes up for hearing, but the defendant is entitled to one
continuance for a reasonable period of at least 15 days or any shorter
period the defendant requests, to enable the defendant to meet the
plaintiff’s application. The TRO remains in effect until the date of the
continued hearing. CCP §§527(d), 527.85(d). See §20.51.
(5) Ask the parties if they might be willing to consider mediation of
their dispute. If so, refer the case to mediation, and advise the parties that
what happens during mediation is not admissible in any subsequent court
proceeding. See Evid C §1119.
(6) If the parties wish to proceed to hearing, advise them that they
have the right to present any relevant testimony, including oral testimony.
Also advise the parties that the court may make an independent inquiry,
i.e., the court may question the parties and their witnesses. CCP
§527.85(e). See §20.52.
(7) If the court finds by clear and convincing evidence that the
defendant made a credible threat of violence off the school campus or
facility, it should issue the requested injunction prohibiting further threats
of violence. CCP §527.85(e). The plaintiff must also establish that great or
irreparable harm would result to the employee if an injunction is not
issued because of the reasonable probability that unlawful violence will
occur in the future. See §20.53. If the plaintiff shows good cause, the court
has the discretion to issue an injunction that includes other named family
or household members who reside with the student, or other students at the
school campus or facility. CCP §527.85(d).
(8) Advise the parties of the duration of the injunction (maximum of
three years). Also advise the plaintiff that he or she may apply for renewal
of the injunction by filing a new petition at any time within three months
before the injunction expires. CCP §527.85(e).
(9) Advise the defendant that he or she may not own, possess,
purchase, receive, or attempt to purchase or receive a firearm for the
duration of the injunction. Order the defendant to sell to a licensed gun
dealer or turn in to the police any firearms that he possesses or controls
within 24 hours of receiving the order. See §20.59.
(10) Advise the defendant that he or she must file proof of sale or
surrender of any firearm with the court within 48 hours of receiving the
order. See §20.59.
(11) Advise the plaintiff that he or she must deliver a copy of the
order to the law enforcement agencies specified in the order by the close
of the business day on which the order is granted. See §20.57.
III. APPLICABLE LAW
A. [§20.8] General Background
Code of Civil Procedure §§527.6 (civil harassment), 527.8
(workplace violence), and 527.85 (off-campus threats of violence against
student) set forth the requirements for statutorily created injunctions. They
establish special procedures specifically designed to provide expedited
injunctive relief to persons who have suffered civil harassment or who are
under a credible threat of violence in the workplace or postsecondary
school students who have received off-campus threats of violence. See
Huntingdon Life Sciences, Inc. v Stop Huntingdon Animal Cruelty USA,
Inc. (2005) 129 CA4th 1228, 1250, 29 CR3d 521 (speech that constitutes
“harassment” is not constitutionally protected); Byers v Cathcart (1997)
57 CA4th 805, 811, 67 CR2d 398. They provide for issuing injunctions of
limited scope and limited duration. See 57 CA4th at 810–812 (CCP
§527.6 is not intended to provide for summary determination of
potentially complex issues, e.g., it cannot be used to resolve dispute over
easement use); Marquez-Luque v Marquez (1987) 192 CA3d 1513, 1517–
1519, 238 CR 172 (because CCP §527.6 protects people, not property,
court does not have authority to evict defendant who has threatened to
damage property but not to harm plaintiff).
A person seeking an injunction under these statutes need not make
the showing that is generally required for the granting of injunctive relief.
For example, neither statute requires that before the court may grant an
injunction there must be a showing that a legal remedy (e.g., money
damages) is an inadequate remedy. Nevertheless, in determining whether
to issue such an injunction, the court should consider the general
principles that
• Injunctive relief is designed to deter and not to punish (Russell v
Douvan (2003) 112 CA4th 399, 401–402, 5 CR3d 137; Scripps
Health v Marin (1999) 72 CA4th 324, 332, 85 CR2d 86);
• An injunction is an equitable remedy (People v Sangiacomo (1982)
129 CA3d 364, 367, 181 CR 90);
• A prior restraint is a disfavored remedy (Hurvitz v Hoefflin (2000)
84 CA4th 1232, 1241–1242, 101 CR2d 558); and
• A court should issue a mandatory injunction only on a clear
showing that injury will result if the injunction is not issued
(Youngblood v Wilcox (1989) 207 CA3d 1368, 1372 n1, 255 CR
527).
B. Temporary Restraining Order and Injunction Prohibiting
Harassment (CCP §527.6)
1. [§20.9] Who May Seek Relief
A person who has suffered harassment (see §20.10) may seek a TRO
and an injunction prohibiting harassment. CCP §527.6(a). The term
“person” is limited to natural persons and does not include artificial
entities such as corporations, partnerships, or associations. Huntingdon
Life Sciences, Inc. v Stop Huntingdon Animal Cruelty USA, Inc. (2005)
129 CA4th 1228, 1258, 29 CR3d 521 (animal testing laboratory cannot
maintain cause of action against organization and individuals protesting
laboratory’s activities); Diamond View Ltd. v Herz (1986) 180 CA3d 612,
618–619, 225 CR 651 (limited partnership not entitled to injunctive relief).
The plaintiff may appear in the proceeding by counsel or in pro per.
CCP §527.6(e).
2. [§20.10] Harassment Defined
• “Harassment” means 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. CCP §527.6(b).
• “Unlawful violence” is any assault, battery, or stalking, but does
not include lawful acts of self-defense or defense of others. CCP
§527.6(b)(1).
• “Credible threat of violence” is a knowing and willful statement or
course of conduct that would place a reasonable person in fear of
his or her safety, or the safety of his or her immediate family, and
that serves no legitimate purpose. CCP §527.6(b)(2). The intent
requirement for a true threat is that the defendant intentionally or
knowingly communicates the threat; it is not necessary that the
defendant intends to, or is able to carry out the threat. Huntingdon
Life Sciences, Inc. v Stop Huntingdon Animal Cruelty USA, Inc.
(2005) 129 CA4th 1228, 1255–1256, 29 CR3d 521.
“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. CCP §527.6(b)(3); see Leydon v Alexander (1989) 212 CA3d 1,
4, 260 CR 253 (single incident of harassment is insufficient; potential
different result in case involving verbal abuse amounting to credible threat
of violence). It includes following or stalking an individual, making
harassing telephone calls, or sending harassing correspondence by any
means including mail, fax, or e-mail. CCP §527.6(b)(3). See Brekke v
Wills (2005) 125 CA4th 1400, 1412–1414, 23 CR3d 609 (teenage
boyfriend’s conduct constituted “course of conduct” against minor
girlfriend’s parents; boyfriend sent three vitriolic letters to girlfriend
knowing her mother would read them, he had earlier sent letters
instructing girlfriend on retaliatory measures she could take against her
parents for their restrictions on her, and he taunted mother on telephone).
Constitutionally protected activity is not included within the term “course
of conduct.” CCP §527.6(b). For example, filing a legal action does not
constitute harassment because an individual has a constitutional right to
petition for redress of grievances. See Byers v Cathcart (1997) 57 CA4th
805, 809, 67 CR2d 398; Leydon v Alexander, supra, 212 CA3d at 5; see
also Smith v Silvey (1983) 149 CA3d 400, 406, 197 CR 15 (defendant
could not be enjoined from initiating complaints about plaintiff with
public agencies). The course of conduct must by its nature cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the plaintiff. CCP
§527.6(b); Brekke v Wills, supra, 125 CA4th at 1414–1415. For example,
the court may not grant a TRO and preliminary injunction under CCP
§527.6, enjoining a nuisance such as the noise from the use of a basketball
court, without proof that the noise caused substantial emotional distress to
the plaintiff. See Schild v Rubin (1991) 232 CA3d 755, 761–765, 283 CR
533. The phrase “substantial emotional distress” is not defined by CCP
§527.6. But in the analogous context of the tort of intentional infliction of
emotional distress, the similar phrase “severe emotional distress” has been
defined to mean highly unpleasant mental suffering or anguish “from
socially unacceptable conduct,” that entails such intense, enduring, and
nontrivial emotional distress that “no reasonable [person] in a civilized
society should be expected to endure it.” 232 CA3d at 762–763.
Code of Civil Procedure §527.6 is not intended to supplant normal
injunctive procedures applicable to cases concerning issues other than
harassment as defined in the statute. Byers v Cathcart, supra, 57 CA4th at
811. Conduct that is outside the definition of “harassment” cannot be
enjoined under the summary procedures of CCP §527.6, even if it might
ultimately be enjoined under normal injunctive procedures after full
development of the facts and law. Byers v Cathcart, supra, 57 CA4th at
812. For example, without substantial evidence of harassing conduct, a
court may not use CCP §527.6 to order a defendant to stay 25 feet away
from the plaintiff who was conducting judgment debtor examinations in
court. Nebel v Sulak (1999) 73 CA4th 1363, 1370, 87 CR2d 385.
3. [§20.11] Issuing a Temporary Restraining Order
The court may grant a TRO on the plaintiff’s petition and application,
with or without notice, if the plaintiff shows reasonable proof of
harassment by the defendant, and that he or she will suffer great or
irreparable harm if the TRO is not granted. CCP §527.6(c); see CCP
§527.6(m) (plaintiff must use Judicial Council form CH-100 for petition;
court must use Judicial Council form CH-120 to issue TRO). Unless
otherwise ordered, no memorandum of points and authorities is required.
Cal Rules of Ct 3.1152(b). No filing fee may be charged for a petition that
alleges that the defendant has inflicted or threatened violence against the
plaintiff, stalked the plaintiff, or acted or spoken in any other manner that
has placed the plaintiff in reasonable fear of violence, and that seeks a
restraining order or injunction restraining stalking, future violence, or
threats of violence. CCP §527.6(p). And no fee may be charged for a
subpoena filed in connection with a petition alleging these acts. CCP
§527.6(p).
On a showing of good cause, the court has the discretion to issue a
TRO that includes other named family or household members who reside
with the plaintiff. CCP §527.6(c). The TRO remains in effect, at the
court’s discretion, for up to 15 days or, if the court extends the time for
hearing, for up to 22 days, unless otherwise modified or terminated by the
court. CCP §527.6(c).
4. Subsequent Hearing
a. [§20.12] Time for Hearing
A hearing must be held within 15 days or, if good cause appears, 22
days from the date the TRO is issued. CCP §527.6(d); Cal Rules of Ct
3.1152(a).
b. [§20.13] Service on Defendant
The defendant must be personally served with a copy of the petition
for an injunction, TRO, and notice of hearing on the petition at least five
days before the hearing. CCP §527.6(g); see Judicial Council forms CH-
120, CH-130. Service must be made in the manner provided by law for
personal service of the summons in a civil action. Cal Rules of Ct
3.1152(c). For good cause, the court may shorten the time for service.
CCP §527.6(g).
c. [§20.14] Defendant’s Response
The defendant may file a response that explains, excuses, justifies, or
denies the alleged harassment, or may file a cross-complaint for an
injunction prohibiting harassment. CCP §527.6(d); see CCP §527.6(m)
(defendant must use Judicial Council form CH-110); see also CCP
§527.6(p) (when filing fee is not required). The response must be filed and
delivered to the plaintiff or the plaintiff’s attorney no later than 48 hours
before the hearing. Cal Rules of Ct 3.1152(d). The defendant may appear
in the proceeding by counsel or in pro per. CCP §527.6(e).
d. [§20.15] Continuance
If the TRO has been issued without notice, the plaintiff must be ready
to proceed when the matter first comes up for hearing. CCP §§527(d)(3),
527.6(c); Adler v Vaicius (1993) 21 CA4th 1770, 1775, 27 CR2d 32. The
defendant is entitled to one continuance for a reasonable period of at least
15 days or any shorter period the defendant requests, to enable the
defendant to meet the plaintiff’s application. CCP §527(d)(4); Adler v
Vaicius, supra, 21 CA4th at 1775–1776. The TRO remains in effect until
the date of the continued hearing. CCP §527(d)(4).
e. [§20.16] Evidence
At the hearing, the court must receive any relevant testimony,
whether oral or written. CCP §527.6(d); Adler v Vaicius (1993) 21 CA4th
1770, 1776, 27 CR2d 32. The court may also make an independent
inquiry. CCP §527.6(d). The court may not deny a party the opportunity to
present oral testimony. Schraer v Berkeley Prop. Owners’ Ass’n (1989)
207 CA3d 719, 730–733, 255 CR 453 (court should not have refused
introduction of oral testimony and should not have based its decision
entirely on written declarations, documentary evidence, and arguments of
counsel). However, it is the parties’ obligation to ensure that their
witnesses are present at the hearing and ready to testify. See 207 CA3d at
732 n5. Both sides may offer evidence by deposition, affidavit, or oral
testimony, and the court must receive this evidence, subject only to
reasonable limitations necessary to preserve the expeditious nature of the
harassment procedure. A full-fledged evidentiary hearing with oral
testimony is not necessary, unless requested by a party. See Ensworth v
Mullvain (1990) 224 CA3d 1105, 1110–1111, 274 CR 447; Schraer v
Berkeley Prop. Owners’ Ass’n, supra, 207 CA3d at 733 n6. Direct
testimony from the plaintiff that he or she suffered substantial emotional
distress is not required for the court to issue an injunction; the plaintiff’s
declaration may be sufficient. Ensworth v Mullvain, supra, 224 CA3d at
1110–1111.
Testimony of mental health practitioner. Although communications
between a patient and a psychotherapist are confidential and privileged
under Evid C §1012, the “dangerous patient” exception to the
psychotherapist-patient privilege permits disclosure of any threatening
communications of the patient if the psychotherapist has reasonable cause
to believe that the patient is in such mental or emotional condition as to be
dangerous to himself or herself or to the person or property of another and
that disclosure of the communications are necessary to prevent the
threatened harm. Evid C §1024.
f. [§20.17] Presence of Support Person at Hearing
If there are allegations or threats of domestic violence, a support
person may accompany the plaintiff in court. CCP §527.6(f). If the
plaintiff is appearing in pro per, the support person may sit with the
plaintiff at the counsel table. CCP §527.6(f). The support person may not
provide legal advice, but is allowed to be present to provide moral and
emotional support to the plaintiff. CCP §527.6(f). The court has the
discretion to remove the support person from the courtroom if the court
believes that the support person is prompting, swaying, or influencing the
plaintiff. CCP §527.6(f).
5. Issuance of Injunction
a. [§20.18] Findings
If the court finds by clear and convincing evidence that unlawful
harassment exists, it must issue an injunction prohibiting the harassment.
CCP §527.6(d); see Judicial Council form CH-140. The plaintiff must also
establish that great or irreparable harm would result to the plaintiff if an
injunction is not issued because of the reasonable probability that unlawful
violence will occur in the future. Russell v Douvan (2003) 112 CA4th 399,
401–404, 5 CR3d 137 (trial court erred in issuing injunction based on a
single act of violence without finding threat of future harm). When read
literally, the language of CCP §527.6(d) appears to provide that once the
plaintiff establishes by clear and convincing evidence that the defendant
has engaged in a single act of harassment, the court must issue an
injunction. But CCP §527.6(d) must be read to include the requirement
that the plaintiff show that great or irreparable harm is likely to occur
absent the injunction because the plaintiff is required to make such a
showing under CCP §527.6(c) to obtain a TRO. 112 CA4th at 402–404.
The court is not required to make a specific finding on the record that
harassment exists, or to cite the statutory elements of the harassment.
Although there must be evidence to support the required elements of
harassment and substantial emotional distress, direct testimony by the
plaintiff is not required to establish or support those elements. See
Ensworth v Mullvain (1990) 224 CA3d 1105, 1112, 274 CR 447.
b. [§20.19] Award of Costs and Fees
The court may award the prevailing party court costs and attorneys’
fees. CCP §527.6(i). See Leydon v Alexander (1989) 212 CA3d 1, 5, 260
CR 253 (award is discretionary); see also §20.14. Because CCP §527.6(i)
does not define “prevailing party,” the court may use the general definition
of “prevailing party” in CCP §1032. Adler v Vaicius (1993) 21 CA4th
1770, 1777, 27 CR2d 32; Elster v Friedman (1989) 211 CA3d 1439,
1443–1444, 260 CR 148 (court properly awarded fees and costs to
plaintiffs even though terms of injunction entered under stipulated
settlement applied to them as well as to defendants, because plaintiffs
obtained the precise relief they had sought). Attorney fees, as well as
costs, may be awarded to a prevailing defendant even if the action was
brought in good faith and is not frivolous. Krug v Maschmeier (2009) 172
CA4th 796, 800–803, 91 CR3d 452.
c. [§20.20] Duration of Injunction
The maximum duration of the injunction is three years. CCP
§527.6(d). At any time within three months before its expiration, the
plaintiff may apply for renewal of the injunction by filing a new petition.
CCP §527.6(d). If no expiration date is indicated on the injunction order,
the order is presumed to run for three years.
d. [§20.21] Persons Covered
On a showing of good cause, the court has the discretion to issue an
injunction that includes other named family or household members who
reside with the plaintiff. CCP §527.6(c); §20.11.
e. [§20.22] Forms
A TRO or injunction issued under CCP §527.6 must be issued on
forms adopted by the Judicial Council that have been approved by the
Department of Justice. CCP §527.6(n); see Judicial Council form CH-120,
CH-140. But the fact that an order is not issued on such a form does not
make it unenforceable. CCP §527.6(n). The court may provide an
unofficial translation of a court order issued under CCP §527.6, in a
language other than English. CCP §185(a).
f. [§20.23] Mutual Injunctions
The court may not grant mutual injunctions, absent express consent
by the plaintiff, against both the plaintiff and the defendant at a hearing on
the plaintiff’s petition for an injunction against the defendant, unless the
defendant has filed a cross-complaint, as permitted by CCP §527.6(d), and
the plaintiff is given notice of the cross-complaint and an opportunity to
respond to it. Kobey v Morton (1991) 228 CA3d 1055, 1058–1060, 278
CR 530. See also Nora v Kaddo (2004) 116 CA4th 1026, 1029, 10 CR3d
862 (trial court erred in issuing mutual injunctive relief when court refused
to hear witnesses offered by both parties, and defendant did not file a
cross-complaint but merely requested mutual injunctions at the close of
the proceedings).
6. [§20.24] Transmission of Order to Law Enforcement
Agencies
The court must order the plaintiff or the plaintiff’s attorney to deliver
a copy of each TRO or injunction, by the close of the business day on
which the order is granted, to the law enforcement agencies that may be
called on to enforce the injunction. See CCP §527.6(h) (plaintiff may
request transmission to certain agencies but designation of agencies is
within court’s discretion).
Information on any TRO or injunction relating to harassment or
domestic violence issued by a court under CCP §527.6 must be
transmitted to the Department of Justice in accordance with Fam C
§6380(b). CCP §527.6(o).
7. [§20.25] Subsequent Award of Fees and Costs
On the expiration of the TRO or the plaintiff’s dismissal of the
action, the court retains jurisdiction to grant the defendant’s motion for
attorney’s fees and costs as the prevailing party. Adler v Vaicius (1993) 21
CA4th 1770, 1774–1777, 27 CR2d 32.
8. [§20.26] Effect of Defendant’s Bankruptcy Petition
When the plaintiff files a petition for an injunction under CCP §527.6
and the defendant subsequently files a petition in bankruptcy, the
automatic stay provisions of federal bankruptcy law (11 USC §362(a)) do
not apply to the plaintiff’s petition unless the injunction interferes with the
bankruptcy case. An action to enjoin harassment will not generally
interfere with a bankrupt debtor’s estate or threaten the role of the
automatic stay in protecting both the debtor and the debtor’s creditors.
Grant v Clampitt (1997) 56 CA4th 586, 590–592, 65 CR2d 727. However,
any award of costs and fees to the plaintiff as the prevailing party is
required to be stayed under 11 USC §362(a). 56 CA4th at 593.
9. [§20.27] Violation of Injunction
Any willful disobedience of any TRO or injunction granted under
CCP §527.6 is punishable under Pen C §273.6. CCP §527.6(j). Penal Code
§273.6 provides that any intentional and knowing violation of an order
issued under CCP §527.6 is a misdemeanor punishable by a fine of up to
$1000 and/or by imprisonment in the county jail for up to one year. Pen C
§273.6(a). Any violation of the order that results in physical injury is
punishable by a fine of up to $2000 and/or by imprisonment in the county
jail for not less than 30 days nor more than one year. Pen C §273.6(b).
However, if a defendant is imprisoned in county jail for at least 48 hours,
the court may, in the interest of justice, reduce or eliminate the 30-day
minimum imprisonment. Pen C §273.6(b).
A subsequent conviction for violation of Pen C §273.6(a), occurring
within seven years of a prior conviction and involving an act of violence
or a credible threat of violence, is punishable by imprisonment in the
county jail for up to one year or in state prison. Pen C §273.6(d). A
subsequent conviction occurring within one year of a prior conviction that
results in physical injury is punishable by a fine of up to $2000 and/or by
imprisonment in county jail for not less than six months nor more than one
year, or by imprisonment in state prison. Pen C §273.6(e). However, if a
defendant is imprisoned in county jail for at least 30 days, the court may,
in the interest of justice, reduce or eliminate the six-month minimum
imprisonment. Pen C §273.6(e).
A defendant who is convicted of owning, possessing, purchasing, or
receiving a firearm when prohibited from doing so by an order under CCP
§527.6 may be imprisoned in the county jail for up to one year or in state
prison and may be subject to a fine of up to $1000. Pen C §§273.6(g),
12021(g).
10. [§20.28] Statute’s Effect on Other Remedies
The provisions of CCP §527.6 do not apply to any action or
proceeding under the Domestic Violence Prevention Act (Fam C §§6200–
6389) or under the Rosenthal Fair Debt Collection Practices Act (CC
§§1788–1788.33). CCP §527.6(l). The statute does not preclude a plaintiff
from using other civil remedies. CCP §527.6(l).
C. Temporary Restraining Order and Injunction Prohibiting
Workplace Violence (CCP §527.8)
1. [§20.29] Who May Seek Relief
Any employer, whose employee has suffered unlawful violence or a
credible threat of violence from any individual, which can reasonably be
construed to be carried out or to have been carried out at the workplace,
may seek a TRO and an injunction on behalf of the employee and, at the
discretion of the court, on behalf of any number of other employees at the
workplace and, if appropriate, other employees at other workplaces of the
employer. CCP §527.8(a). The provisions of the statute apply to public
and private employers. CCP §527.8(d). The term “employee” includes
volunteers and independent contractors performing services for the
employer at the employer’s workplace, members of corporate boards of
directors, and elected or appointed public officers. CCP §527.8(d). The
plaintiff may appear in the proceeding by counsel or in pro per. CCP
§527.8(g). A plaintiff that is a corporation may only appear through
counsel. Merco Constr. Eng’rs v Mun. Court (1978) 21 C3d 724, 731, 147
CR 631. See Scripps Health v Marin (1999) 72 CA4th 324, 333, 85 CR2d
86 (corporate employer is allowed to seek injunction on behalf of
employee).
By its terms, CCP §527.8 is applicable only to actions at the
employee’s workplace, not his or her home. City of Los Angeles v Animal
Defense League (2006) 135 CA4th 606, 625–627, 37 CR3d 632 (noting
that employee could seek his or her own injunction against harassment at
his or her home under CCP §527.6).
An employer subjected to generalized threats of workplace violence
may obtain relief under CCP §527.8 on behalf of an employee who is a
logical target of the threats, even if the employee was not specifically
identified by the harasser. USS-Posco Indus. v Edwards (2003) 111 CA4th
436, 442–444, 4 CR3d 54.
Labor Code §§6400 et seq (employers’ duties and responsibilities
regarding safety in employment) and CCP §527.8, when read together,
establish an explicit public policy requiring employers to provide a safe
and secure workplace, including a requirement that an employer take
reasonable steps to address credible threats of violence in the workplace.
Franklin v Monadnock Co. (2007) 151 CA4th 252, 258–263, 59 CR3d 692
(terminated employee’s allegations regarding threats of violence made by
co-worker were sufficient to state claim of wrongful termination based on
public policies that require employers to provide a safe and secure
workplace and encourage employees to report credible threats of violence
in the workplace); City of Palo Alto v Service Employees Int’l Union
(2000) 77 CA4th 327, 336–337, 91 CR2d 500.
2. [§20.30] Potential Defendants
A TRO or injunction prohibiting workplace violence may only be
issued against natural persons, and not against groups, associations, or
corporate entities. City of Los Angeles v Animal Defense League (2006)
135 CA4th 606, 622–625, 37 CR3d 632.
3. [§20.31] Unlawful Violence and Credible Threat of
Violence Defined
“Unlawful violence” is assault, battery, or stalking. CCP
§527.8(b)(1). It does not include lawful acts of self-defense or defense of
others. CCP §527.8(b)(1).
A “credible threat of violence” is a knowing and willful statement or
course of conduct that would place a reasonable person in fear for his or
her safety, or the safety of his or her immediate family, and that serves no
legitimate purpose. CCP §527.8(b)(2). The intent requirement for a true
threat is that the defendant intentionally or knowingly communicates the
threat; it is not necessary that the defendant intends to, or is able to carry
out the threat. Huntingdon Life Sciences, Inc. v Stop Huntingdon Animal
Cruelty USA, Inc. (2005) 129 CA4th 1228, 1255–1256, 29 CR3d 521.
JUDICIAL TIP: Courts should be leery of finding that there has
been a credible threat of violence when the defendant has not
directly conveyed the threatening words. For example, the Third
District Court of Appeal, in an employment retaliation case,
acknowledged a lower court’s finding that there was insufficient
evidence of a threat for purposes of issuing injunctive relief under
CCP §527.8 when the defendant did not convey a threat but
merely answered questions put to him by an investigator, and the
investigator interpreted his responses as constituting a threat.
Brown v Department of Corrections (2005) 132 CA4th 520, 524–
525, 33 CR3d 754.
“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. CCP §527.8(b)(3); see Scripps Health v Marin (1999) 72 CA4th
324, 336, 85 CR2d 86 (injunction not warranted based on single threat of
violence when there was no evidence defendant was likely to commit
further acts of violence). It includes following or stalking the employee to
or from the workplace, entering the workplace, following the employee
during employment hours, making telephone calls to the employee, or
sending correspondence to the employee by any means including mail,
fax, or e-mail. CCP §527.8(b)(3).
The threat of violence need not be directed at a particular employee.
An employer may seek injunctive relief under CCP §527.8 on behalf of
any employee who is credibly threatened with unlawful violence, whether
or not the defendant identifies the employee. USS-Posco Indus. v Edwards
(2003) 111 CA4th 436, 442–444, 4 CR3d 54 (evidence of employee’s
threats to bring a gun into the workplace and shoot employees against
whom he harbored a grudge was sufficient for his former manager to fear
for her own safety for purposes of issuing injunction when that manager
instigated disciplinary action that led to the employee’s suspension and
termination). The court may not issue a TRO or an injunction prohibiting
speech or other activities that are constitutionally protected, or protected
by CCP §527.3 (specified acts relating to labor disputes) or any other
provision of law. CCP §527.8(c).
4. [§20.32] Issuance of Temporary Restraining Order
The court may issue a TRO if the employer’s affidavit filed with the
petition for an injunction shows, to the court’s satisfaction, reasonable
proof that the employee has suffered unlawful violence or a credible threat
of violence by the defendant, and that great or irreparable harm would
result to the employee. CCP §527.8(e); see CCP §527.8(m) (plaintiff must
use Judicial Council form WV-100). Unless otherwise ordered, no
memorandum of points and authorities is required. Cal Rules of Ct
3.1152(b). No filing fee may be charged for a petition that alleges the
defendant has inflicted or threatened violence against the employee,
stalked the employee, or acted or spoken in any other manner that has
placed the employee in reasonable fear of violence, and that seeks a
restraining order or injunction restraining stalking, future violence, or
threats of violence. CCP §527.8(p). And no fee may be charged for a
subpoena filed in connection with a petition alleging these acts. CCP
§527.8(p).
On a showing of good cause, the court has the discretion to issue a
TRO that includes other named family or household members who reside
with the employee, or other persons employed at any of his or her
workplaces. CCP §527.8(e). The duration of the TRO may not exceed 15
days, unless otherwise modified or terminated by the court. CCP
§527.8(e).
5. Subsequent Hearing
a. [§20.33] Time for Hearing
A hearing must be held within 15 days after the petition is filed. CCP
§527.8(f); Cal Rules of Ct 3.1152(a).
b. [§20.34] Service on Defendant
The defendant must be personally served with a copy of the
employer’s petition for an injunction, any TRO, and notice of hearing of
the petition at least five days before the hearing. CCP §527.8(h). Service
must be made in the manner provided by law for personal service of the
summons in a civil action. Cal Rules of Ct 3.1152(c). For good cause, the
court may shorten the time for service. CCP §527.8(h).
c. [§20.35] Defendant’s Response
The defendant may file a response that explains, excuses, justifies, or
denies the alleged unlawful violence or credible threats of violence, or
may file a cross-complaint for an injunction prohibiting workplace
violence. CCP §527.8(f); see CCP §527.8(m) (defendant must use Judicial
Council form WV-110); see also CCP §527.8(p) (when filing fee is not
required). The response must be filed and delivered to the plaintiff or the
plaintiff’s attorney no later than 48 hours before the hearing. Cal Rules of
Ct 3.1152(d). The defendant may appear in the proceeding by counsel or
in pro per. CCP §527.8(g).
d. [§20.36] Continuance
If the TRO has been issued without notice, the plaintiff must be ready
to proceed when the matter first comes up for hearing. CCP §§527(d)(3),
527.8(e). The defendant is entitled to one continuance for a reasonable
period of at least 15 days or any shorter period the defendant requests, to
enable the defendant to meet the plaintiff’s application. CCP §527(d)(4).
The TRO remains in effect until the date of the continued hearing. CCP
§527(d)(4).
e. [§20.37] Evidence
At the hearing, the court must receive any relevant testimony and
may make an independent inquiry. CCP §527.8(f). If the defendant is a
current employee of the plaintiff-employer, the court must receive
evidence concerning the employer’s decision to retain, terminate, or
otherwise discipline the defendant. CCP §527.8(f).
Testimony of mental health practitioner. Although communications
between a patient and a psychotherapist are confidential and privileged
under Evid C §1012, the “dangerous patient” exception to the
psychotherapist-patient privilege permits disclosure of any threatening
communications of the patient if the psychotherapist has reasonable cause
to believe that the patient is in such mental or emotional condition as to be
dangerous to himself or herself or to the person or property of another and
that disclosure of the communications are necessary to prevent the
threatened harm. Evid C §1024.
6. Issuance of Injunction
a. [§20.38] Findings
If the court finds by clear and convincing evidence that the defendant
engaged in unlawful violence or made a credible threat of violence, the
court must issue an injunction prohibiting further unlawful violence or
threats of violence. CCP §527.8(f); see Judicial Council form WV-140.
The plaintiff must also establish that great or irreparable harm would
result to the employee if an injunction is not issued because of the
reasonable probability that unlawful violence will occur in the future. City
of Los Angeles v Animal Defense League (2006) 135 CA4th 606, 615, 625,
37 CR3d 632; Scripps Health v Marin (1999) 72 CA4th 324, 332, 335, 85
CR2d 86. Read literally, the language of CCP §527.8(f) appears to provide
that once the plaintiff establishes by clear and convincing evidence that
the defendant has engaged in violence or made a credible threat of
violence, the court must issue an injunction. 72 CA4th at 332. But CCP
§527.8(f) must be read to include the requirement that the plaintiff show
that great or irreparable harm is likely to occur absent the injunction
because the plaintiff is required to make such a showing under CCP
§527.8(e) to obtain a TRO. 72 CA4th at 334–335.
b. [§20.39] Duration of Injunction
The maximum duration of the injunction is three years. CCP
§527.8(f). At any time within three months before its expiration, the
plaintiff may apply for renewal of the injunction by filing a new petition.
CCP §527.8(f).
c. [§20.40] Persons Covered
On a showing of good cause, the court has the discretion to issue an
injunction that includes other named family or household members who
reside with the employee, or other persons employed at any of his or her
workplaces. CCP §527.8(e).
d. [§20.41] Forms
A TRO or injunction issued under CCP §527.8 must be issued on
forms adopted by the Judicial Council that have been approved by the
Department of Justice. CCP §527.8(n). However, the fact that an order is
not issued on such a form does not make it unenforceable. CCP §527.8(n).
The court may provide an unofficial translation of a court order issued
under CCP §527.8, in a language other than English. CCP §185(a).
7. [§20.42] Transmission of Order to Law Enforcement
Agencies
The court must order the plaintiff or the plaintiff’s attorney to deliver
a copy of each TRO or injunction, by the close of the business day on
which the order is granted, to the law enforcement agencies that may be
called on to enforce the injunction. See CCP §527.8(i)(1) (plaintiff may
request transmission to certain agencies but designation of agencies is
within court’s discretion).
Information on any TRO or injunction relating to harassment or
domestic violence issued by a court under CCP §527.8 must be
transmitted to the Department of Justice in accordance with Fam C
§6380(b). CCP §527.8(o).
8. [§20.43] Violation of Injunction
The penalties for any intentional disobedience of any TRO or
injunction granted under CCP §527.8 are the same as for any willful
disobedience of a TRO or an injunction granted under CCP §527.6. See
CCP §527.8(k); discussion in §20.27.
9. [§20.44] Statute’s Effect on Other Remedies
The TRO and injunction available under CCP §527.8 are in addition
to whatever other remedies the employer or affected employee may have
against workplace violence. City of Palo Alto v Service Employees Int’l
Union (2000) 77 CA4th 327, 336, 91 CR2d 500.
D. Temporary Restraining Order and Injunction Prohibiting
Off-Campus Threats to Postsecondary School Students
(CCP §527.85)
1. [§20.45] Who May Seek Relief
Any chief administrative officer of a private postsecondary
educational institution, or an officer or employee designated by the chief
administrative officer to maintain order on the school campus or facility, a
student of which has suffered a credible threat of violence made off the
campus or facility from any individual, which can reasonably be construed
to be carried out or to have been carried out on the school campus or
facility, may seek a TRO and an injunction on behalf of a student. CCP
§527.85(a). The student’s written consent to seek a TRO is required. CCP
§527.85(a). At the discretion of the court, the court may also issue
injunctive relief to any number of other students at the campus and
facility, who are similarly situated. CCP §527.85(a). The term “student”
includes any adult currently enrolled in or applying for admission to a
private postsecondary educational institution. CCP §527.85(b)(5).
2. [§20.46] Credible Threat of Violence Defined
A “credible threat of violence” is a knowing and willful statement or
course of conduct that would place a reasonable person in fear for his or
her safety, or the safety of his or her immediate family, and that serves no
legitimate purpose. CCP §527.85(b)(3). The intent requirement for a true
threat is that the defendant intentionally or knowingly communicates the
threat; it is not necessary that the defendant intends to, or is able to carry
out the threat. Huntingdon Life Sciences, Inc. v Stop Huntingdon Animal
Cruelty USA, Inc. (2005) 129 CA4th 1228, 1255–1256, 29 CR3d 521.
JUDICIAL TIP: Courts should be leery of finding that there has
been a credible threat of violence when the defendant has not
directly conveyed the threatening words. For example, the Third
District Court of Appeal, in an employment retaliation case,
acknowledged a lower court’s finding that there was insufficient
evidence of a threat for purposes of issuing injunctive relief under
CCP §527.8 when the defendant did not convey a threat but
merely answered questions put to him by an investigator, and the
investigator interpreted his responses as constituting a threat.
Brown v Department of Corrections (2005) 132 CA4th 520, 524–
525, 33 CR3d 754.
“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. CCP §527.85(b)(2); see Scripps Health v Marin (1999) 72 CA4th
324, 336, 85 CR2d 86 (injunction not warranted based on single threat of
violence when there was no evidence defendant was likely to commit
further acts of violence). It includes following or stalking a student to or
from school, entering the school campus or facility, following a student
during school hours, making telephone calls to a student, or sending
correspondence to a student by any means including mail, fax, or e-mail.
CCP §527.85(b)(2).
The court may not issue a TRO or an injunction prohibiting speech or
other activities that are constitutionally protected, or protected by CCP
§527.3 (specified acts relating to labor disputes) or any other provision of
law. CCP §527.85(c).
3. [§20.47] Issuance of Temporary Restraining Order
The court may issue a TRO if the chief administrative officer’s (or
designee’s) affidavit filed with the petition for an injunction shows, to the
court’s satisfaction, reasonable proof that the student has suffered a
credible threat of violence made off the campus or facility by the
defendant and that the student will suffer great or irreparable harm if the
TRO is not granted. CCP §527.85(d). No filing fee may be charged for a
petition that alleges the defendant has inflicted or threatened violence
against the student, stalked the student, or acted or spoken in any other
manner that has placed the student in reasonable fear of violence, and that
seeks a restraining order or injunction restraining stalking or future threats
of violence. CCP §527.85(o). And no fee may be charged for a subpoena
filed in connection with a petition alleging these acts. CCP §527.85(o).
On a showing of good cause, the court has the discretion to issue a
TRO that includes other named family or household members who reside
with the student, or other student at the campus or facility. CCP
§527.85(d). The duration of the TRO may not exceed 15 days, unless
otherwise modified or terminated by the court. CCP §527.85(d).
4. Subsequent Hearing
a. [§20.48] Time for Hearing
A hearing must be held within 15 days after the petition is filed. CCP
§527.85(e).
b. [§20.49] Service on Defendant
The defendant must be personally served with a copy of the petition
for an injunction, any TRO, and notice of hearing of the petition at least
five days before the hearing. CCP §527.85(g). For good cause, the court
may shorten the time for service. CCP §527.85(g).
c. [§20.50] Defendant’s Response
The defendant may file a response that explains, excuses, justifies, or
denies the alleged credible threats of violence, or may file a cross-
complaint under CCP §527.85. CCP §527.85(e); see CCP §527.85(o)
(when filing fee is not required). The defendant may appear in the
proceeding by counsel or in pro per. CCP §527.85(f).
d. [§20.51] Continuance
If the TRO has been issued without notice, the plaintiff must be ready
to proceed when the matter first comes up for hearing. CCP §§527(d)(3),
527.85(d). The defendant is entitled to one continuance for a reasonable
period of at least 15 days or any shorter period the defendant requests, to
enable the defendant to meet the plaintiff’s application. CCP §527(d)(4).
The TRO remains in effect until the date of the continued hearing. CCP
§527(d)(4).
e. [§20.52] Evidence
At the hearing, the court must receive any relevant testimony and
may make an independent inquiry. CCP §527.85(e). If the defendant is a
current student of the entity requesting the injunction, the judge must
receive evidence concerning the decision of the educational institution to
retain, terminate, or discipline the defendant. CCP §527.85(e).
Testimony of mental health practitioner. Although communications
between a patient and a psychotherapist are confidential and privileged
under Evid C §1012, the “dangerous patient” exception to the
psychotherapist-patient privilege permits disclosure of any threatening
communications of the patient if the psychotherapist has reasonable cause
to believe that the patient is in such mental or emotional condition as to be
dangerous to himself or herself or to the person or property of another and
that disclosure of the communications are necessary to prevent the
threatened harm. Evid C §1024.
5. Issuance of Injunction
a. [§20.53] Findings
If the court finds by clear and convincing evidence that the defendant
made a credible threat of violence off the school campus or facility, the
court must issue an injunction prohibiting further threats of violence. CCP
§527.85(e). The plaintiff must also establish that great or irreparable harm
would result to the employee if an injunction is not issued because of the
reasonable probability that unlawful violence will occur in the future. City
of Los Angeles v Animal Defense League (2006) 135 CA4th 606, 615, 625,
37 CR3d 632; Scripps Health v Marin (1999) 72 CA4th 324, 332, 335, 85
CR2d 86. Code of Civil Procedure §527.85(e) must be read to include the
requirement that the plaintiff show that great or irreparable harm is likely
to occur absent the injunction because the plaintiff is required to make
such a showing under CCP §527.85(d) to obtain a TRO. See discussion of
City of Los Angeles v Animal Defense League (2006) 135 CA4th 606, 37
CR3d 632, and Scripps Health v Marin (1999) 72 CA4th 324, 85 CR2d
86, in §20.38. These cases impose the requirement under the similarly
worded CCP §527.8.
b. [§20.54] Duration of Injunction
The maximum duration of the injunction is three years. CCP
§527.85(e). At any time within three months before its expiration, the
plaintiff may apply for renewal of the injunction by filing a new petition.
CCP §527.85(e).
c. [§20.55] Persons Covered
On a showing of good cause, the court has the discretion to issue an
injunction that includes other named family or household members who
reside with the student, or other students at the campus or facility. CCP
§527.85(d).
d. [§20.56] Forms
The Judicial Council is responsible for developing forms, instruction,
and rules for the scheduling of hearings and other procedures under CCP
§527.85. CCP §527.85(l), (p)(2). The forms for the petition and response
must be simple and concise, and their use must be mandatory. CCP
§527.85(l).
6. [§20.57] Transmission of Order to Law Enforcement
Agencies
The court must order the plaintiff or the plaintiff’s attorney to deliver
a copy of each TRO or injunction, by the close of the business day on
which the order is granted, to the law enforcement agencies that may be
called on to enforce the injunction. See CCP §527.85(h)(1) (plaintiff may
request transmission to certain agencies but designation of agencies is
within court’s discretion).
Information on any TRO or injunction relating to harassment or
domestic violence issued by a court under CCP §527.85 must be
transmitted to the Department of Justice in accordance with Fam C
§6380(b). CCP §527.85(n).
7. [§20.58] Violation of Injunction
The penalties for any intentional disobedience of any TRO or
injunction granted under CCP §527.85 are the same as for any willful
disobedience of a TRO or an injunction granted under CCP §527.6. See
CCP §527.85(j); discussion in §20.27.
E. [§20.59] Firearms Restrictions
A person subject to a protective order issued under CCP §527.6,
§527.8, or §527.85 cannot own, possess, purchase, receive, or attempt to
purchase or receive firearms during the term of the protective order. CCP
§§527.6(k)(1), 527.8(j)(1), 527.85(i)(1); Pen C §12021(g).
Relinquishment of firearm. On issuing a protective order, the court
must order the defendant to relinquish any firearms he or she owns or
possesses. CCP §§527.6(k)(2), 527.8(j)(2), 527.85(i)(2), 527.9(a). The
court must order the defendant to relinquish all firearms in his or her
immediate possession and control, or subject to the defendant’s possession
or control, within 24 hours of being served with the order. CCP §527.9(b).
To comply with the relinquishment order, the defendant may either
(CCP §527.9(b)):
• Sell the firearm to a licensed gun dealer as specified in Pen C
§12071; or
• Surrender control of the firearm to the local law enforcement
agency.
Note: The local law enforcement agency may charge a storage fee that
does not exceed the actual cost of storage. “Actual cost” means expenses
directly related to taking possession of a firearm, storing the firearm, and
surrendering possession of the firearm to a licensed dealer or to the person
relinquishing the firearm. CCP §527.9(c).
The defendant must file a receipt of sale or surrender of any firearms
with the court within 48 hours after receiving the order. CCP §527.9(b).
Defendants may file with the court Judicial Council form CH-145 (if
subject to CCP §527.6 protective order) or WV-145 (if subject to CCP
§527.8 protective order) as proof of sale or surrender.
The following exemptions to the firearms restrictions apply (CCP
§527.9(f)):
• Employment. If the defendant can show (1) a particular firearm is
necessary as a condition of continued employment, and (2) the
current employer cannot reassign the defendant to a position that
does not require a firearm. If the court grants this exemption, then
the court must order that the firearm will be in the defendant’s
possession only during scheduled work hours and travel to and
from work.
• Peace Officer. If carrying a firearm by a peace officer is necessary
as a (1) condition of employment and (2) personal safety depends
on carrying the firearm, then the court may allow the officer to
carry a firearm on or off duty if the court finds by a preponderance
of the evidence that the officer does not pose a threat of harm.
Before making this finding, the court must require the peace
officer to undergo a psychological evaluation and may require the
defendant to enter into a counseling or other remedial treatment
program to deal with any propensity for domestic violence.
During the period of the relinquishment order, the defendant is
entitled to make one sale of all firearms that are in the possession of local
law enforcement. A licensed gun dealer, who presents a bill of sale, shall
be given possession of those firearms, at the storage location, within five
days of presenting the bill of sale. CCP §527.9(g).
Requirements of restraining order. The restraining order requiring a
person to relinquish a firearm under CCP §527.9(b) must state the
following on its face (CCP §527.9(d)):
• The defendant is prohibited from owning, possessing, purchasing,
or receiving a firearm for the duration of the protective order and
that any firearm in the defendant’s immediate possession or control
must be relinquished to the local law enforcement agency for that
jurisdiction or sold to a licensed gun dealer, and that proof of
surrender or sale shall be filed with the court within a specified
period of receipt of the order.
• The expiration date for relinquishment.
Modification of order. The defendant has a right to petition the court
at a later date for modification of the order. CCP §527.9(d).
Expiration of relinquishment order. If the firearms were stored with
local law enforcement, then the firearms must be returned to the defendant
within 5 days after expiration of the order unless the law enforcement
agency determines that (1) the firearm has been stolen, (2) the defendant is
in a prohibited class for possession of firearms under Pen C §§12021 and
12021.1 and Welf & I C §§8100 and 8103, or (3) there is another
restraining order against the defendant. If the defendant cannot get the
firearm back and is the legal owner, the defendant is entitled to sell it to a
licensed gun dealer. CCP §527.9(e).
Penalty for violation of firearm restrictions. A defendant who
purchases or receives, or attempts to purchase or receive a firearm,
knowing that he or she is prohibited from doing so by a protective order, is
guilty of a public offense punishable by imprisonment in county jail for up
to one year, or in state prison for 16 months or two or three years, and/or a
fine of up to $1000. CCP §§527.6(k)(3), 527.8(j)(3), 527.85(i)(3); Pen C
§§273.6(g)(1), 12021(g)(1).
A defendant who owns or possesses a firearm, knowing that he or she
is prohibited from doing so by a protective order, is guilty of a
misdemeanor punishable by imprisonment in county jail for up to one year
and/or a fine of up to $1000. CCP §§527.6(k)(3), 527.8(j)(3), 527.85(i)(3);
Pen C §§273.6(g)(1), 12021(g)(2).
F. [§20.60] Subsequent Malicious Prosecution Action
A malicious prosecution action cannot be based on an unsuccessful
petition under CCP §527.6 (Siam v Kizilbash (2005) 130 CA4th 1563,
1567, 1571–1574, 31 CR3d 368) or an unsuccessful petition under CCP
§527.8 (Robinzine v Vicory (2006) 143 CA4th 1416, 1422–1424, 50 CR3d
65). The defendant’s remedy is to seek sanctions in the CCP §527.6 or
§527.8 proceedings for the filing of a frivolous petition.
G. [§20.61] Anti-SLAPP Motion To Strike
A defendant may file a special motion to strike under CCP §425.16,
the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute,
challenging a petition for injunctive relief under CCP §527.6 (Thomas v
Quintero (2005) 126 CA4th 635, 646–653, 24 CR3d 619) and a petition
for injunctive relief under CCP §527.8 (City of Los Angeles v Animal
Defense League (2006) 135 CA4th 606, 617–620, 37 CR3d 632). Petitions
for injunctive relief constitute “causes of action” under the anti-SLAPP
law. People v Quintero, supra. For a comprehensive discussion of the anti-
SLAPP statute, see CALIFORNIA JUDGES BENCHBOOK: CIVIL
PROCEEDINGS―BEFORE TRIAL, SECOND EDITION (Cal CJER 2008),
§12.117–12.141.
H. [§20.62] Special Provisions Regarding Plaintiffs or Defendants
Who Are Minors
A minor 12 years of age or older, accompanied by a duly appointed
and acting guardian ad litem, may appear in court without an attorney for
the limited purpose of obtaining or opposing a request for a TRO or
injunction prohibiting harassment under CCP §527.6 or workplace
violence under CCP §527.8. CCP §374(a); Cal Rules of Ct 3.1153. The
minor may also appear without counsel, a guardian, or a guardian ad litem.
CCP §372(b)(1)(A)–(B). However, the court, either on motion or in its
own discretion, and after considering reasonable objections by the minor
to the appointment of specific individuals, may appoint a guardian ad
litem to help the minor obtain or oppose the order. CCP §372(b)(1). This
appointment may not delay the issuance or denial of the order. CCP
§372(b)(1). In determining whether to appoint a particular guardian ad
litem, the court must consider whether the minor and the guardian have
divergent interests. CCP §372(b)(1).
A proceeding brought by or against a minor for an injunction under
CCP §527.6 or §527.8 will ordinarily be heard in the superior court. See
CCP §374.5. However, if the minor bringing the action or against whom
the action is brought has previously been adjudged a dependent child or
ward of the juvenile court, the matter must be heard in the juvenile court
having jurisdiction over the minor. CCP §374.5.
When a minor who is seeking an order under CCP §527.6 or §527.8
initially appears in court without a guardian or guardian ad litem, and
resides with a parent or guardian, the court must send a copy of the order
to at least one parent or guardian designated by the minor. CCP
§372(b)(2). The court has the discretion not to send a copy of the order if
the court determines that this notification would be contrary to the minor’s
best interest. CCP §372(b)(2). The court need not send the order to more
than one parent or guardian. CCP §372(b)(2).
IV. [§20.63] SCRIPT: ADVISEMENTS TO PARTIES AT
COMMENCEMENT OF CIVIL HARASSMENT
HEARING
OPENING REMARKS
This is the civil harassment hearing calendar. I am Judge
__________, and I will be hearing most, if not all, of your cases when
they are called for hearing today. Before the calendar is called, I would
like to spend some time informing you of the law that applies in civil
harassment cases because most of you are representing yourselves and
may not have a complete and accurate understanding of the law that
applies in these cases.
Requests for an injunction to prohibit civil harassment are a creature
of statute in California. This means that the Legislature has passed
specific laws governing these types of cases. Whether the plaintiff is
granted an injunction today will, if your case goes to a hearing, be
determined solely by whether the plaintiff proves his or her case
according to the requirements set out in the statute. If the plaintiff proves
his or her case according to these requirements, the plaintiff should
expect to be granted an injunction. If the plaintiff is unable to prove his or
her case, the plaintiff should not expect to be granted an injunction.
WHAT CONSTITUTES HARASSMENT
The statute defines certain terms in ways that are not always
consistent with their common usage. Harassment, for example, in
common usage, is understood to be just about anything that bothers a
person. This is not the definition of “harassment” in the statute. The
statute defines “harassment” 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. If the conduct the plaintiff is complaining
about does not meet this statutory definition, then the conduct is not
harassment for the purposes of these proceedings no matter how much
the conduct may bother the plaintiff.
Let’s look closer at this definition. If the conduct the plaintiff is
complaining about is not violence or a credible threat of violence, then the
defendant’s conduct must be knowing and willful to be harassment. If
your evidence as the plaintiff is that you think the defendant is crazy and
does not know what he or she is doing, and that you believe the
defendant should be taken under restraint to the nearest mental health
facility, then you may have some legal problems in showing the court that
the defendant’s conduct is knowing and willful under the statutory
definition.
The conduct, other than violence, or threat of violence, must be part
of a course of conduct before it may be considered civil harassment.
“Course of conduct” has its own definition in the statute, which we will
look at in a moment.
The conduct about which the plaintiff complains must be directed at
a specific individual, that is, the plaintiff, before the conduct may be
considered to be actionable civil harassment. If the conduct is not
directed toward the plaintiff, but rather toward a group, organization, or
location, then the plaintiff may not be able to prove civil harassment.
The conduct about which the plaintiff complains must serve no
legitimate purpose in order to constitute civil harassment. If the plaintiff
admits to owing money to the defendant, then it is not civil harassment for
the defendant to call the plaintiff on a reasonably consistent basis to ask
when the plaintiff will satisfy this debt. If the plaintiff admits to holding
property of the defendant, then it is not civil harassment for the defendant
to come to the plaintiff’s residence to try to retrieve this property. There
are many situations in which the conduct about which plaintiffs complain
serves a legitimate purpose. If that is the case, then the plaintiff is not
entitled to relief under the civil harassment statute.
The statute also requires the plaintiff to show that the conduct about
which the plaintiff is complaining would cause a reasonable person to
suffer substantial emotional distress and must actually cause substantial
emotional distress to the plaintiff. By including this requirement, the
Legislature has indicated that there are going to be cases in which the
court finds that the plaintiff is very distressed but that a reasonable person
under the same circumstances would not be substantially emotionally
distressed. The cases that raise this issue most commonly are ones that
involve family—a parent, for example, who is suing his or her child, or a
child who is suing his or her parent, claiming harassment and asking the
court to grant an injunction to prevent the family member from ever
contacting the plaintiff. I have parents and children, and I know that there
are times when you can get very upset with your family. However, if I, the
judge, conclude, for example, that it is unreasonable for a plaintiff to say
that he or she never wants his or her parent or child to send the plaintiff a
birthday or Christmas present, or to call the plaintiff at Thanksgiving or
Easter, I might conclude in general that the plaintiff is not being
reasonable, and the plaintiff might not get relief even though he or she
may be very distressed.
“COURSE OF CONDUCT”
As I said before, the phrase “course of conduct” has its own
definition. The statute defines course of conduct as a pattern of conduct
over a period of time, however short, that shows a continuity of purpose.
To be entitled to relief, the plaintiff in any case not involving violence or a
credible threat of violence must show a pattern of conduct over time. As a
matter of law, a one-time, nonviolent incident is not sufficient for a civil
harassment injunction because the plaintiff has failed to prove a pattern of
conduct over time.
The statute also says that constitutionally protected activity is not
included within the meaning of “course of conduct.” That means that I
cannot improperly take away the defendant’s constitutional rights by any
injunction I might issue. Whether you like it or not, whether you agree with
it or not, we all enjoy certain constitutional rights in this society, including
free speech rights, associational rights, privacy rights, due process rights,
and property rights. For example, I cannot improperly take away the
property and due process rights of a person by ordering him or her out of
an apartment he or she rents from the plaintiff landlord. The plaintiff’s
remedy in such a case is to file an unlawful detainer proceeding to
terminate the tenancy without the tenant’s consent.
There are also privileges that exist in our society that I cannot take
away by what I do as the judge in a civil harassment case. One privilege
that comes up fairly often is the privilege to complain to governmental
organizations. Plaintiffs frequently file civil harassment suits when the
defendant has made reportedly improper complaints about the plaintiff to
law enforcement authorities. Calling law enforcement authorities to report
a suspected crime is a privileged phone call. There is nothing I can or
would do to stop someone from making such a call. If the person who
makes such a call knowingly makes a false report, that person has
committed a crime and may be prosecuted and, if convicted, sent to jail.
The actual phone call, however, is privileged and cannot be enjoined.
This is also true of calls to other governmental entities, such as the IRS,
the INS, and child protective services. Any plaintiff who is asking for such
conduct to be enjoined is not making a reasonable request.
BURDEN OF PROOF
Although petitions for an injunction to prohibit civil harassment are a
civil matter, they do not have the normal civil burden of proof. The normal
civil burden of proof is very easy to understand. It is called a
preponderance of the evidence and really means that the judge or jury
must weigh the evidence presented and, unless the plaintiff’s evidence
preponderates—that is, it amounts to over 50 percent—the judge or jury
should deny the plaintiff’s claim and find in the defendant’s favor. This is
not the standard, however, that the Legislature has set out for courts to
follow in civil harassment cases. In these cases, a judge cannot grant a
plaintiff an injunction unless the plaintiff proves his or her case by clear
and convincing evidence.
There is no numerical standard for clear and convincing evidence as
there is for a preponderance of the evidence. Clear and convincing
evidence is a very high standard of proof, but it is not as high as the
standard of proof beyond a reasonable doubt required in a criminal case.
I cannot tell you beforehand what will or will not be clear and convincing
evidence, but I can give you an example of what probably will not be clear
and convincing evidence. If the sole evidence of alleged threats by the
defendant is the plaintiff’s statement under oath that the threats were
made, but the defendant under oath denies making these threats, and
there are no corroborating witnesses or any corroborating evidence, then
it is unlikely that I will find that the plaintiff’s case has been proved by
clear and convincing evidence.
COURT’S INDEPENDENT INQUIRY
The statute expressly provides that the judge may make an
independent inquiry at the hearing. If your case is called for a hearing,
please realize that I will be making an independent inquiry. I will be asking
specific questions to one or both parties, and perhaps to their witnesses.
Once I have finished asking all the questions I want answered, I will allow
each party to present any other evidence each may have and, if the
evidence is relevant, I will consider it before I rule on the request for an
injunction.
DURATION OF INJUNCTION
If I decide to issue an injunction, the maximum duration of the
injunction is three years. If you receive an injunction and still need
protection at the end of three years, you may apply for a renewal of the
injunction by filing a new petition within three months before the injunction
is due to expire.
VIOLATION OF INJUNCTION
If I decide to issue an injunction and the defendant violates this
injunction, this violation is a crime. It may be reported to the police and
prosecuted like any other crime. If the police choose not to take action,
the plaintiff has the additional remedy of filing and serving an order to
show cause why the defendant should not be held in contempt for
violating the court’s order. Because the defendant is facing a potential jail
term on such a contempt charge, the defendant is entitled to court-
appointed counsel if the defendant cannot afford counsel, and the
contempt must be proved beyond a reasonable doubt.
PROOF OF SERVICE ON DEFENDANT
If your case comes on for hearing and the defendant is not present in
the courtroom, please know that the first thing I am going to do after
calling your case is to check the court file to confirm that there is a proof
of personal service on the defendant in the file. If there is no proof of
service or if the proof of service is defective, then I do not have personal
jurisdiction over the defendant and cannot listen to your case. All I can do
is continue—that is, postpone—your case, so that you can properly serve
the defendant. If I continue your case and you have been issued a
temporary restraining order, this restraining order will remain in effect until
the new hearing date.
CONCLUDING REMARKS
The clerk and the bailiff will now take roll to see who is here and who
is not here. Please remain in your seats and answer when your name is
called.
V. [§20.64] ADDITIONAL REFERENCES
CALIFORNIA JUDGES BENCHBOOK: CIVIL PROCEEDINGS—BEFORE TRIAL, SECOND EDITION (Cal CJER 2008), chap 14.
6 Witkin, California Procedure, Provisional Remedies (5th ed 2008).
Table of Statutes
CALIFORNIA
CIVIL CODE
1788–1788.33
20.28
CODE OF CIVIL
PROCEDURE
185(a)
20.22, 20.41
372(b)(1)
20.62
372(b)(1)(A)–(B)
20.62
372(b)(2)
20.62
374(a)
20.2, 20.4, 20.62
374.5
20.62
425.16
20.61
527(d)
20.5, 20.7
527(d)(3)
20.15, 20.36, 20.51
527(d)(4)
20.15, 20.36, 20.51
527.3
20.31, 20.46
527.6
20.1–20.2, 20.8, 20.10,
20.22, 20.24, 20.26,
20.29, 20.43, 20.58–20.62
527.6(a)
20.2, 20.9
527.6(b)
20.2–20.3, 20.10
527.6(b)(1)
20.10
527.6(b)(2)
20.10
527.6(b)(3)
20.10
527.6(c)
20.2–20.3, 20.11, 20.15,
20.18, 20.21
527.6(d)
20.2–20.3, 20.12, 20.14,
20.16, 20.18, 20.20, 20.23
527.6(e)
20.9, 20.14
527.6(f)
20.17
527.6(g)
20.3, 20.13
527.6(h)
20.24
527.6(i)
20.19
527.6(j)
20.27
527.6(k)(1)
20.59
527.6(k)(2)
20.59
527.6(k)(3)
20.59
527.6(l)
20.28
527.6(m)
20.11, 20.14, 20.22
527.6(o)
20.24
527.6(p)
20.11, 20.14
527.8
20.1, 20.4, 20.8, 20.28–
20.31, 20.35, 20.41–20.62
527.8(a)
20.4, 20.29
527.8(b)
20.4
527.8(b)(1)
20.31
527.8(b)(2) CCP
20.31
527.8(b)(3)
20.31
527.8(c)
20.31
527.8(d)
20.29, 20.40
527.8(e)
20.4–20.5, 20.32, 20.36,
20.38, 20.40
527.8(f)
20.5, 20.33, 20.35, 20.37–
20.39
527.8(g)
20.29, 20.35
527.8(h)
20.5, 20.34
527.8(i)(1)
20.42
527.8(j)(1)
20.59
527.8(j)(2)
20.59
527.8(j)(3)
20.59
527.8(k)
20.43
527.8(m)
20.32, 20.35
527.8(n)
20.41–20.42
527.8(o)
20.42
527.8(p)
20.32, 20.35
527.9(a)
20.59
527.9(b)
20.59
527.9(c)
20.59
527.9(d)
20.59
527.9(e)
20.59
527.9(f)
20.59
527.9(g)
20.59
527.85
20.1, 20.6–20.7, 20.50,
20.56–20.59
527.85(a)
20.6, 20.8, 20.45
527.85(b)(2)
20.46
527.85(b)(3)
20.6, 20.46
527.85(b)(5)
20.45
527.85(c)
20.46
527.85(d)
20.6–20.7, 20.47, 20.51,
20.53, 20.55
527.85(e)
20.7, 20.48, 20.50, 20.52–
20.54
527.85(f)
20.50
527.85(g)
20.7, 20.49
527.85(h)(1)
20.57
527.85(i)(1)
20.59
527.85(i)(2)
20.59
527.85(i)(3)
20.59
527.85(j)
20.58
20–39 Table of Statutes Cal Rules of Ct
527.85(l)
20.56
527.85(n)
20.57
527.85(o)
20.47, 20.50
527.85(p)(2)
20.56
1032
20.19
EVIDENCE CODE
1012
20.16, 20.37, 20.52
1119
20.3, 20.5, 20.7
1024
20.16, 20.37, 20.52
FAMILY CODE
6200–6389
20.28
6380(b)
20.24, 20.42, 20.57
LABOR CODE
6400 et seq
20.29
PENAL CODE
273.6
20.27
273.6(a)
20.27
273.6(b)
20.27
273.6(d)
20.27
273.6(e)
20.27
273.6(g)
20.27
273.6(g)(1)
20.59
12021
20.59
12021(g)
20.27, 20.59
12021(g)(1)
20.59
12021(g)(2)
20.59
12021.1
20.59
12071
20.5
WELFARE AND
INSTITUTIONS CODE
8100
20.59
8103
20.59
ACTS BY POPULAR NAME
Domestic Violence Prevention
Act
20.28
Rosenthal Fair Debt Collection
Practices Act
20.28
CALIFORNIA RULES OF
COURTCal Rules of Ct
3.1152(a)
20.12, 20.33
3.1152(b)
20.11, 20.32
3.1152(c)
20.13, 20.34
3.1152(d)
20.3, 20.5, 20.14, 20.35
3.1153
20.62
USC California Judges Benchguide 20–40
UNITED STATES
UNITED STATES CODE
Title 11USC
362(a)
20.26
Table of Cases
Adler v Vaicius (1993) 21 CA4th
1770, 27 CR2d 32: §§20.15–
20.16, 20.19, 20.25
Brekke v Wills (2005) 125
CA4th 1400, 23 CR3d 609:
§20.10
Brown v Department of
Corrections (2005) 132 CA4th
520, 33 CR3d 754: §§20.10,
20.46
Byers v Cathcart (1997) 57
CA4th 805, 67 CR2d 398:
§§20.8, 20.10
City of Los Angeles v Animal
Defense League (2006) 135
CA4th 606, 37 CR3d 632:
§§20.29–20.30, 20.38, 20.53,
20.61
City of Palo Alto v Service
Employees Int’l Union (2000)
77 CA4th 327, 91 CR2d 500:
§§20.29, 20.44
Diamond View Ltd. v Herz
(1986) 180 CA3d 612, 225 CR
651: §20.9
Elster v Friedman (1989) 211
CA3d 1439, 260 CR 148:
§20.19
Ensworth v Mullvain (1990) 224
CA3d 1105, 274 CR 447:
§§20.16, 20.18
Franklin v Monadnock Co.
(2007) 151 CA4th 252, 59
CR3d 692: §20.29
Grant v Clampitt (1997) 56
CA4th 586, 65 CR2d 727:
§20.26
Huntingdon Life Sciences, Inc. v
Stop Huntingdon Animal
Cruelty USA, Inc. (2005) 129
CA4th 1228, 29 CR3d 521:
§§20.8–20.10, 20.31, 20.45
Hurvitz v Hoefflin (2000) 84
CA4th 1232, 101 CR2d 558:
§20.8
Kobey v Morton (1991) 228
CA3d 1055, 278 CR 530:
§20.23
Krug v Maschmeier (2009) 172
CA4th 796, 91 CR3d 452:
§20.19
Leydon v Alexander (1989) 212
CA3d 1, 260 CR 253:
§§20.10, 20.19
Los Angeles, City of v Animal
Defense League (2006) 135
CA4th 606, 37 CR3d 632:
§§20.29–20.30, 20.38, 20.53,
20.61
Marquez-Luque v Marquez
(1987) 192 CA3d 1513, 238
CR 172: §20.8
Merco Constr. Eng’rs v Mun.
Court (1978) 21 C3d 724, 147
CR 631: §20.29
Nebel v Sulak (1999) 73 CA4th
1363, 87 CR2d 385: §20.10
Nora v Kaddo (2004) 116 CA4th
1026, 10 CR3d 862: §20.23
Palo Alto, City of v Service
Employees Int’l Union (2000)
77 CA4th 327, 91 CR2d 500:
§§20.29, 20.44
People v Sangiacomo (1982) 129
CA3d 364, 181 CR 90: §20.8
Robinzine v Vicory (2006) 143
CA4th 1416, 50 CR3d 65:
§20.60
Russell v Douvan (2003) 112
CA4th 399, 5 CR3d 137:
§§20.8, 20.18
Sangiacomo, People v (1982)
129 CA3d 364, 181 CR 90:
§20.8
Schild v Rubin (1991) 232 CA3d
755, 283 CR 533: §20.10
Schraer v Berkeley Prop.
Owners’ Ass’n (1989) 207
CA3d 719, 255 CR 453:
§§20.16
Scripps Health v Marin (1999)
72 CA4th 324, 85 CR2d 86:
§§20.8, 20.29–20.31, 20.38,
20.46, 20.53
Siam v Kizilbash (2005) 130
CA4th 1563, 31 CR3d 368:
§20.60
Smith v Silvey (1983) 149 CA3d
400, 197 CR 15: §20.10
Thomas v Quintero (2005) 126
CA4th 635, 24 CR3d 619:
§20.61
USS-Posco Indus. v Edwards
(2003) 111 CA4th 436, 4
CR3d 54: §§20.29–20.31
Youngblood v Wilcox (1989)
207 CA3d 1368, 255 CR 527:
§20.8