Filed 9/30/03
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
LANCE RUSSELL,
Plaintiff and Respondent,
v.
THOMAS DOUVAN,
Defendant and Appellant.
A096261
(San Francisco County
Super. Ct. No. SCV322281)
Here we reaffirm the longstanding principle that a prohibitory injunction may not
issue unless the court finds there is a threat of future harm.
FACTUAL AND PROCEDURAL BACKGROUND
Thomas Douvan and Lance Russell are attorneys who represented opposite sides
in a dispute. Russell claimed that after a court appearance Douvan followed him into an
elevator and forcefully grabbed his arm. Russell filed a petition for an injunction
prohibiting harassment under Code of Civil Procedure section 527.6.1 Following an
evidentiary hearing, the court concluded that Douvan committed a battery and issued an
injunction. Russell did not attribute any other violent act or threat to Douvan. At the
time of the hearing, Russell no longer represented a party in the underlying action.
Russell and Douvan advised the court that they do not “regularly do business with [each
other] or oppos[e] each other.” The court stated: “[T]he legislature has given a quite
clear message that if there’s a battery or an assault committed and that’s demonstrated by
clear and convincing evidence, and that’s it, that I am supposed to issue an injunction.”
1 All statutory references are to the Code of Civil Procedure, unless stated otherwise.
2
Douvan challenges the order because the court issued the injunction without first finding
a threat of future harm. We reverse.
DISCUSSION
The court misinterpreted section 527.6 in concluding an injunction must issue
based on a single incident of battery without finding a threat of future harm. Section
527.6 provides injunctive relief to a person who has suffered harassment. Harassment is
defined in part 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.” (§ 527.6, subd. (b).)
Unlawful conduct is further defined to include “any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-
defense or defense of others.” (§ 527.6, subd. (b)(1).) “If the judge finds by clear and
convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting
the harassment. An injunction issued pursuant to this section shall have a duration of not
more than three years.” (§ 527.6, subd. (d).) “ ‘Clear and convincing’ evidence requires
a finding of high probability.” (In re Angelia P. (1981) 28 Cal.3d 908, 919.)
A prohibitory injunction is “a writ or order requiring a person to refrain from a
particular act.” (§ 525.) Characterized as “preventative relief,” a prohibitory injunction
necessarily addresses future conduct. (Civ. Code, § 3420.) This notion was discussed by
the court in Scripps Health v. Marin (1999) 72 Cal.App.4th 324 (Scripps Health):
“Preliminarily, the express codified purpose of a prohibitory injunction is to prevent
future harm to the applicant by ordering the defendant to refrain from doing a particular
act. [Citations.] Consequently, injunctive relief lies only to prevent threatened injury
and has no application to wrongs that have been completed. [Citation.] It should neither
serve as punishment for past acts, nor be exercised in the absence of any evidence
establishing the reasonable probability the acts will be repeated in the future. Indeed, a
change in circumstances at the time of the hearing, rendering injunctive relief moot or
unnecessary, justifies denial of the request. [Citations.] Moreover, not only can
injunctive relief be denied where the defendant has voluntarily discontinued the wrongful
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conduct [citation], there exists no equitable reason for ordering it where the defendant has
in good faith discontinued the proscribed conduct [citation]. ‘Thus, to authorize the
issuance of an injunction, it must appear with reasonable certainty that the wrongful acts
will be continued or repeated.’ [Citation.]” (Id. at pp. 332-333, italics added.)
Scripps Health concerned section 527.8, the availability of injunctive relief based
on a threat of violence towards employees in the workplace. “At the time section 527.8
was enacted, section 527.6 prevented harassment when there has been a knowing and
willful course of conduct directed at a specific person which annoys or harasses the
person and serves no legitimate purpose. The reasonable construction of this harassment
provision required the applicant to establish a course of conduct giving rise to a threat of
future harm necessitating injunctive relief. In other words, the course of conduct must be
ongoing at the time the injunction is sought, as a single incident of harassment does not
constitute a course of conduct entitling the applicant to injunctive relief. [Citation.]”
(Scripps Health, supra, 72 Cal.App.4th at p. 333, italics added, fn. omitted.)
Section 527.6 was amended in 1998 to parallel the provisions of section 527.8 by
adding “unlawful violence” and the “credible threat of violence” to the definition of
harassment along with the “course of conduct” language discussed by the Scripps Health
court. (Scripps Health, supra, 72 Cal.App.4th at p. 333, fn. 7; Stats. 1998, ch. 581, § 2,
pp. 3158-3160.)
Subdivision (d) of section 526.7 addresses the requirements for obtaining a
permanent injunction. The subdivision provides in part: “If the judge finds by clear and
convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting
the harassment.” Not completely without reason, the trial court understood the statute to
call for the issuance of an injunction upon the finding of a single act of past violence.
This interpretation is, however, too narrow in view of the purpose of a prohibitory
injunction and the broader context of the statute.
A literal interpretation of subdivision (d) is inconsistent with the purpose of
injunctive relief. As the Scripps Health court explained, an injunction serves to prevent
future injury and is not applicable to wrongs that have been completed. An injunction is
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authorized only when it appears that wrongful acts are likely to recur. (Scripps Health,
supra, 72 Cal.App.4th at pp. 332-333.) This analysis is consistent with well-settled
California law. (Rosicrucian Fellow v. Rosicrucian Etc. Ch. (1952) 39 Cal.2d 121, 144;
Hannah v. Pogue (1944) 23 Cal.2d 849, 858; Blake v. City of Eureka (1927) 201 Cal.
643, 661-662; Ball v. Kehl (1891) 87 Cal. 505, 507.)
Nor is a literal interpretation of the subdivision consistent with the purpose of the
statute itself. In construing a statute we rely on established principles of statutory
interpretation: “ ‘ “The fundamental purpose of statutory construction is to ascertain the
intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to
determine this intent, we begin by examining the language of the statute. [Citations.]
But ‘[i]t is a settled principle of statutory interpretation that language of a statute should
not be given a literal meaning if doing so would result in absurd consequences which the
Legislature did not intend.’ [Citations.] Thus, ‘[t]he intent prevails over the letter, and
the letter will, if possible, be so read so as to conform to the spirit of the act.’ [Citation.]
Finally, we do not construe statutes in isolation, but rather read every statute ‘with
reference to the entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness.’ [Citation.]” ’ [Citations.]” (Scripps Health, supra,
72 Cal.App.4th at p. 332.)
Section 527.6 is intended “to protect the individual’s right to pursue safety,
happiness and privacy as guaranteed by the California Constitution.” (Stats. 1978, ch.
1307, § 1, p. 4294; see Cal. Const. art. I, § 1.) The court in Smith v. Silvey (1983) 149
Cal.App.3d 400, recounted a portion of the legislative history in order to explain the
statute’s purpose: “An analysis prepared for the Senate Committee on Judiciary (1977-
1978 Reg. Sess.—Assem. Bill No. 3093) saw the purpose as follows: ‘Under existing
law, a victim of harassment may bring a tort action based either on invasion of privacy or
on intentional infliction of emotional distress. Where great or irreparable injury is
threatened, such victim may obtain an injunction under procedures detailed in C.C.P. Sec.
527(a). [¶] This bill would establish an expedited procedure for enjoining acts of
“harassment” as defined, including the use of temporary restraining orders. . . . [¶] The
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purpose of the bill is to provide quick relief to harassed persons.’ ” (Id. at p. 405.) It
follows that if there is no likelihood of future harm, there is no necessity for an expedited
procedure for relief. Indeed, under subdivision (d) a court cannot issue an injunction
unless it finds by clear and convincing evidence that “unlawful harassment exists” (§
527.6, subd. (d), italics added), not that it existed in the past.
Additionally, we borrow from the reasoning of the Scripps Health court to find
that a literal interpretation of section 527.6, subdivision (d) “would result in the absurd
consequence of placing a greater burden of proof on a plaintiff to obtain an ex parte TRO
than a permanent injunction.” (Scripps Health, supra, 72 Cal.App.4th at p. 334.) Section
527.6, subdivision (c) provides that a “plaintiff may obtain a temporary restraining
order” upon filing an affidavit establishing “reasonable proof of harassment . . . by the
defendant, and that great or irreparable harm would result to the plaintiff.” (Italics
added.) Under subdivision (d), a permanent injunction shall issue upon a finding by clear
and convincing evidence that the defendant engaged in unlawful violence. Applying
subdivision (d) literally, a plaintiff seeking a temporary restraining order would have to
show that great or irreparable harm is threatened, while that same plaintiff would have to
demonstrate only a single past act of unlawful violence to obtain the greater relief of a
permanent injunction. Common sense does not support such an interpretation. (Scripps
Health, supra, 72 Cal.App.4th at p. 335.)
When the court concluded that a single act of unlawful violence required the
issuance of an injunction, it construed its role too narrowly. There may well be cases in
which the circumstances surrounding a single act of violence may support a conclusion
that future harm is highly probable. That finding, however, must be made and the court
failed to do so here.
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DISPOSITION
The order granting injunctive relief is reversed. Douvan shall bear his own costs
on appeal.
_________________________
Corrigan, Acting P.J.
We concur:
_________________________
Parrilli, J.
_________________________
Pollak, J.
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Trial court: San Francisco County Superior Court
Trial judge: Honorable James McBride
Law Offices of Jon-Marc Dobrin, Hal Chase; Russell & Russell, Lance Arthur Russell
for Plaintiff and Respondent.
Pierce & Shearer LLP, Andrew F. Pierce, for Defendant and Appellant.