You did it, finally. You separated in your divorce and have moved in with the new love of your life. Things are great. You invite your friends over to meet her and to “show” her off a little bit. Life is fun and couldn’t be better.
On a few occasions, you entertained the friends in the back yard with dinner and drinks. Nothing got out of hand; the most that happened was chatting and laughter through the early evening hours.
One day a person comes to the front door. It’s a process server and you and your new love have been served with a “temporary restraining order.” It states that on a few occasions, you entertained friends in your back yard and the chatting and laughing disturbed the peace of your neighbors. This may not be good for your divorce.
You make an appointment to see your attorney because a hearing in the superior court is arriving pretty fast. You discuss the issues with your attorney. What is going on with this Civil Harassment Restraining Order pursuant to Code of Civil Procedure §527.6?
Civil Harassment Restraining Orders Pursuant to Code of Civil Procedure §527.6.
The California legislature enacted CCP §527.6 to provide a streamlined method of obtaining relief from harassment. Because the method provided does not afford the safeguards normally associated with a full hearing that is contemplated by the ordinary litigation process; the circumstances under which relief can be granted are circumscribed. In absence of any one of the prescribed circumstances, a Court cannot issue an injunction pursuant to this code section.
The necessary elements are as follows:
A. Unlawful violence or;
B. Credible threat of violence or;
C. A willful course of conduct, directed at a specific
D. That person must be seriously alarmed, annoyed or harassed;
E. The conduct causing annoyance must serve no legitimate purpose;
F. The conduct must be of such a nature that a reasonable person would suffer “severe emotional distress;”
G. The plaintiff must actually “suffer emotional distress;”
H. The conduct must exhibit a continuity of purpose not involving Constitutionally protected conduct.
Each element is found in the definition contained in the code section. In addition to these elements the legislature has provided procedural safeguards including a specific direction that only relevant evidence is to be considered and that the burden of proof is clear and convincing evidence.
Jury Instruction CACI No. 201 instructs on clear and convincing evidence: “Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means the party must persuade you that it is highly probable that the fact is true. I will tell you speciﬁcally in which facts must be proved by clear and convincing evidence.” “Clear and convincing’ evidence requires a ﬁnding of high probability.”(In re Angelia P. (1981) 28 Cal.3d 908, 919 [171 Cal.Rptr. 637, 623 P.2d 198].
If the plaintiff fails with respect to a necessary element, a restraining order will not issue. Evidence of violence or a credible threat of violence must be presented on the face of the petition. Unfounded allegations by a plaintiff will not suffice.
Course of Conduct.
A potential theory advanced in seeking a civil harassment restraining order can be based on a course of conduct. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and it must actually cause substantial emotional distress to the Plaintiff.
The Plaintiff must make allegations of specific and as to repeated conduct towards a plaintiff that falls within the meaning of CCP §527.6(3).
A plaintiff cannot omit any subject matter or substance that adequately describes the circumstances. Or, the instances would not amount to credible threats of violence, nor show a course of conduct that would cause substantial emotional distress. There must be a showing in which the Court can adequately gauge the evidence
Leydon v. Alexander (1989) 212 Cal.App.3d 1 announced that a single act of confrontation is not the equivalent of a course of conduct. A single act of a verbal argument is a great deal less than a verbal confrontation similar to that in Leydon. If so, a plaintiff could not allege substantial distress and could not specify harm under such circumstances in order to obtain relief.
This is what occurred in Leydon:
“[The appellant and defendant] Alexander had not spoken with Leydon in eight years, but he did so that day. As he explained it: “[After] years of frustration, anger, and disappointment, I wanted to state to her some of the pain that I had experienced.” He asked Leydon if she was still “‘fucking'” the city manager. When she did not respond, Alexander told her she was nothing but a “‘pussy’.” When Leydon’s coworker Pat Carson, who was Black, suggested that the conversation be moved to an office from the lobby where it was taking place, Alexander told her to “be a good Negro and go back to her office.” He denies calling her a “‘nigger'” or referring to Leydon as a “‘cunt’.” Leydon’s coworker Kristie Mikita asked if she should call the police, a suggestion which Alexander encouraged. He indicated that he would wait for them to arrive. However, Leydon directed her staff not to call the police. The encounter lasted about five minutes, after which Alexander left.
Several days later, Leydon filed a petition for a temporary restraining order and an injunction prohibiting harassment pursuant to Code of Civil Procedure section 527.6. The trial court issued a temporary restraining order and an injunction after hearing.
The appeal court reversed.
“…we must conclude that Leydon has not established the necessary prerequisites for obtaining injunctive relief under section 527.6…The judgment is reversed.” Appellant’s request for attorney’s fees were denied. Ibid. 3-5.
In the leading case of Schild v. Rubin (1991) 232 Cal.App.3d 755, the plaintiff complained of afternoon and evening basketball games in a neighbor’s yard. The Court’s description was that noise was chatting and the sound of the game. The trial court issued an injunction. The appeals Court reversed.
One ground for the reversal was that no reasonable person could suffer severe emotional distress as a result of the conduct. The Court noted that everyone must cope with the inconveniences and annoyances of living in a society. If one were to read that opinion and substitute instances of disagreement over several months period of time, the result would be obvious. The Schild Court noted the trial judge’s assessment that the legal process was used as a method of exacerbating community arguments.
The Schild case reviewed the egregious stalking incident that motivated the legislature to adopt the statute. It is clear that persons do not have a reasonable expectation of privacy when acting in areas open to the public. The same reasoning could apply to open areas where people engage is business. Legitimate, although unwanted, contact is expected in one’s community. A reasonable person must realize that complete emotional tranquility is seldom attainable, and some degree of transitory emotional distress is the natural consequence of living among other people in an urban or suburban environment. Schild v. Rubin, supra, 232 Cal. App. 3d 755, 763.
Not everyone always loves all those with whom they are neighbors with. It is not a legitimate reason to seek an injunction.
Continuity For an Unlawful Purpose.
In the case of Bryers v. Cathcart (1997) 57 Cal.App. 4th 805, a trial Court issued mutual restraining orders. The complaint was that the defendant was parking her car improperly. The Appeals Court reversed. In addition to other grounds, the Court noted the complete lack of evidence of violence, threats, or conduct that would justify mutual orders. In a case before a court a similar lack of evidence existing would fall short of the statutory requirements for obtaining a restraining order:
1. That the conduct was without legitimate purpose;
2. That the conduct was done for the purpose of annoying a plaintiff. It is not sufficient that a plaintiff is subjectively annoyed;
3. That the conduct was consistently and purposefully directed to plaintiff;
4. That a plaintiff suffered substantial emotional distress;
5. That conduct, for its unlawful purpose, and the substantial emotional distress proven by clear and convincing evidence.
The Court can dissolve a temporary restraining order and refuse to issue the injunction if the burden of clear and convincing evidence is not met. A plaintiff failing to allege or prove a course of conduct sufficient to meet the standard of proof is insufficient. A plaintiff must show a willful course of conduct directed at them. If a plaintiff is not seriously harmed or harassed they cannot show “substantial emotional distress,” This fails the legal standard. Motives cannot be based on anger rather than “distress.” In so far as speech is relied upon as a basis, speech is Constitutionally protected. Even opinions that may be contrary to the feelings of a neighbor are protected. Alleged events regarding protected speech couldn’t support the issuance of an order.
Whether you are prosecuting or defending a civil harassment restraining order, you need a skilled and knowledgeable attorney by your side protecting all of your interests.
Robert Rodriguez has litigated dozens of cases under the CCP §527.6 Civil Harassment law, as well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.