Civil Harassment Restraining Order
California law provides certain protections to people to allow them to live their lives free from abuse or harassment. The primary legal tool in achieving this is the restraining order. There are various types under California law and Restraining Order Attorney is a law firm with a deep working knowledge of all of them, including civil harassment restraining orders. Restraining Order Attorney can help clients all over Los Angeles file or dispute civil harassment restraining orders.
What is a Civil Harassment Restraining Order?
California legal policy considers victims or potential victims of abuse as a vulnerable population that is afforded protection in both its criminal and civil courts. A common method in civil proceedings to combat this abuse is for a person (the victim) to petition a judge to impose a restraining order protecting them from someone else (the defendant). Of the four types of restraining orders in California, the civil harassment restraining order is both the most common and the one with the widest applications.
A civil harassment restraining order is sought out by a victim any time they are the victim of abuse and/or harassment by someone who is not intimately related or involved with them, such as a neighbor or acquaintance. It may also require protection from someone who is a total stranger to the victim. The civil harassment includes any instances of harassment or abuse and is distinct from a domestic violence restraining order (DVRO) which seeks protection from an immediate family member or romantic partner.
Patterns of behavior and/or conduct that may warrant a civil harassment restraining order include:
Abuse, including physical, emotional, and/or sexual abuse. This may include instances of the defendant assaulting or battering the victim (physical abuse), intimidating and/or threatening the victim (emotional abuse), and initiating unwanted and nonconsensual intimate contact (sexual abuse). Not all of these types of abuse have to be criminal in nature as a civil harassment restraining order is a civil matter (like all restraining orders in California). In the case of emotional abuse, the defendant does not even have to touch the victim in any way; it is merely enough that the victim testifies to the judge that said emotional abuse veritably scare and/or annoy them enough to affect their well-being and sense of safety.
Imminent and/or probable threats of abuse. This includes any instances where the threats are credible enough to cause a state of sustained and reasonable fear in the victim. This caveat adheres to the general concept of the “reasonable person” standard, which in California civil law means that any reasonable person of sound mind would have a similar reaction to the behavior in question. This can also include instances of criminal harassment such as stalking or making criminal threats; though neither of those crimes result in any kind of physical contact between the defendant and the victim, they are still serious enough to merit a civil harassment restraining order being granted.
Serious and persistent harassment. In this case, the action of harassing someone is defined by its repetitive nature, where the disruptive behavior in question occurs at least two (2) or more times and entails a pattern of behavior. This is one of the crucial criteria for a judge granting a civil harassment restraining order: the presence of a pattern of behavior.
Furthermore, in order for 1) to 3) to qualify as civil harassment, and merit civil harassment restraining order, the abuse must have been committed by somebody that the victim has not dated nor had a close familial relationship with. If it was committed by a romantic partner (such as a lover, spouse, or partner) or immediate family member (such as a parent or sibling), then it qualifies as domestic violence and therefore a domestic violence restraining order. Therefore, if a platonic friend, roommate, or work buddy commits the abuse then it would be civil harassment. Additionally, if the abuse or harassment is committed by a family member more than twice removed, such as an aunt, uncle, niece, nephew, or cousin, then it is treated as civil harassment and not as domestic violence.
What is Harassment under the California Code of Civil Procedure?
The strict legal definition of “harassment” in civil harassment is delineated under California Code of Civil Procedure (CCP) in Section § 527.6. This includes any violence that is unlawful, including battery and/or assault. The severity of these types of violence depends on the circumstances of the crime and whether or not they actually or potentially caused great bodily harm. This does not include any violence committed in self-defense or what is known in California law as “mutual combat”, whereby one party is making a good faith effort to stop fighting or to communicate a way to end the fighting.
Harassment also includes any behavior that poses a substantial, credible, and imminent threat of violence. That means that the behavior in question would cause any reasonable person, as per California’s “reasonable person” standard, to fear for their life and/or safety. Examples of this type of behavior include stalking and criminal threats, both of which are criminal forms of harassment that can be prosecuted under criminal law. However, in the context of a civil harassment restraining order, a private citizen may request a restraining order from their county superior court (or the county in which the violation occurred) without any criminal proceedings occurring. It is up to the District Attorney (the DA) of the county in question to determine whether or not to press charges.
Furthermore, these forms of violence and/or threatening behavior need only to annoy, frighten, or adversely affect the victim’s wellbeing to potentially trigger a civil harassment restraining order. This threatening behavior can be communicated in any medium, including verbally, in writing, and/or electronically. This may include phone calls, text messages, fax messages, emails or instant messaging, and even gestures and/or hand signals. The only defining characteristic must be the victim’s response and subsequent sense of fear from said behavior to warrant a restraining order. Additionally, there needs to be no valid reason for the offending behavior.
Finally, the most common form of harassment is stalking. The crime of stalking is defined as a set of behaviors that are largely defined by unwanted visual contact and/or physical proximity. This means that the harasser consistently and repeatedly comes to the victim’s place of residence, place of employment, and/or place of schooling to initiate this unwanted visual contact and/or physical proximity. The entire action of stalking has a menacing and/or threatening component to it as well as an element of sexual gratification for the defendant. It is generally considered to be precursor activity to more serious crimes of physical assault and/or sexual assault.
The victim (and possibly the victim’s family) will also experience an onslaught of communication attempts that are also unwanted and can come persistently and without any end in sight. This onslaught of communication is almost always threatening in nature and is part of a wider and more comprehensive spectrum of harassing conduct that causes the victim to live in a sustained state of fear, for both their safety and the safety of their family. This also includes what is now known as “cyberstalking”, where the victim will be harassed via the internet and any social media accounts they may maintain online. This has the result of a pattern of harassment that is all-consuming and nearly impossible for the victim to escape from without outside protection from the court system.
A Civil Harassment Restraining Order Forbids What Types of Behavior?
California harassment law (CCP § 527.6) was specifically drafted to protect victims. It puts pressure on the defendant to adhere to a strict set of instructions as handed down by the presiding judge in order to curb abusive or harassing behavior. If the defendant fails to adhere to these instructions, then a criminal charge of violating a restraining or protective order (as written in California Penal Code, section 273.6 PC) is pursued against the defendant. This crime can be either a misdemeanor or a felony as determined by the District Attorney (DA) and carries a maximum prison sentence of three (3) years if charged as a felony.
Therefore, a civil harassment restraining order is like a serious warning to would-be abusers that they need to obey the judge’s orders or face serious consequences. A civil harassment restraining order was developed with the overall safety of the victim in mind, although the crime of stalking has significantly influenced the usual prohibitions that judges append to the order. These can include various actions. The most frequent one is not allowing the defendant to contact the victim or their family in any way. This does not just include threatening or harassing missives, but any sort of contact whatsoever.
This also means that the judge will most likely order the defendant to stay away from any place where the victim could hypothetically be in order to go about their daily business. This includes their house, their workplace, and/or where they go to school. It also includes the house, workplace, and/or school of anyone in the victim’s family. The judge may even impose a minimum distance, such as three-hundred (300) feet, that the defendant must keep away from the victim. The defendant will also be forbidden from purchasing and/or owning any firearms for the duration of the restraining order, and if they do already own some they will have to sell them or temporarily transfer ownership of them to be stored by some other entity or person.
It is best to consider a civil harassment restraining order as a catch-all tool to act as a serious deterrent to aberrant and potentially criminal behavior. The most powerful aspect of its implementation is the fact that the judge has considerable leeway in how to structure and implement the specific requirements of each restraining order. He may even order the defendant to attend specific counseling or courses to further deter future criminal or abusive behavior. Judges are quick to grant temporary restraining orders and any defendant who has been served a restraining order would be wise to proceed with legal representation to effectively appeal them.
What Is Needed To Get A Civil Harassment Temporary Restraining Order?
A civil harassment restraining order is distinct from both elder abuse and workplace violence restraining orders in that the aggrieved party (the victim) requests the order themselves. They must file the relevant paperwork at their county superior court to petition the civil judge to grant a Temporary Restraining Order, also referred to as a TRO.
The court papers required for a temporary restraining order in California can be filed by any individual. In most courts in California, requests for TRO’s are handled (usually approved) on the same day that they are filed with the court. There is a judge in each county whose sole job is to review every restraining order petition made on that day.
There is minimal proof that is required to have a civil harassment restraining order granted. The legal term is “reasonable proof”. Essentially, the victim must make sworn declarations (meaning that if they lie then they are guilty of the crime of perjury) about harassment and/or abuse that is being inflicted on them. The judge will require sworn statements, all given under penalty of perjury, about whatever type of abuse (physical, emotional, and/or sexual) that is occurring. The petition is most effective if the victim explicitly makes a case that the abusive or harassing behavior is a consistent pattern that shows no sign of abating and may even be escalating. Nearly every form of threatening or harassing behavior eventually escalates into a full-blown assault.
If an adult has minors that are in their charge, such as a parent with children, then any civil harassment restraining order will immediately protect them as a vulnerable population. However, anyone who is older than eighteen (18) will have to petition for their own civil harassment restraining order.
Despite the fact that “reasonable proof” is actually the minimal threshold of evidence needed in a legal proceeding in California courts, the majority of civil harassment restraining orders are granted. This is because a TRO is, by its very definition, limited in its duration. It can, at most, last thirty (30) days until a hearing for a Permanent Restraining Order, also known as a PRO, is held. Furthermore, instances of civil harassment often turn in to more serious crimes and most judges will consider the safety of the victim versus the disruptions to the defendant’s life and reputation.
A PRO hearing is generally more balanced and does allow for both sides to present arguments to the judge for and against the restraining order. There is no legal way for a defendant to prevent a TRO from being filed against them, though they can certainly use the PRO hearing to argue that it should not become permanent. If the judge does rule on imposing a Permanent Restraining Order, the maximum term is five (5) years.
What Is Needed to Get a Civil Harassment Permanent Restraining Order?
The burden of proof is far higher for a judge to approve a Permanent Restraining Order. Whereas a TRO simply requires “reasonable proof”, or sworn statements from all the principals accusing the defendant of abusive and/or harassing behavior, the imposition of a PRO requires that the victim prove their allegations with “clear and convincing” evidence. This can include various pieces of evidence, but most often consists of:
Emails, written messages, and/or recordings. These may be used to show that the defendant threatened the victim in writing and made them feel unsafe and/or harassed. In cases where any kind of threat or menacing comment was made in writing or on a recording, in any medium whatsoever, the case is quickly resolved in the victim’s favor. However, California is a state that requires the consent of both parties in order to record conversations, thus making certain pieces of evidence inadmissible if improperly gathered.
Photographs. These may show the defendant lurking about the victim’s property or place of employment. It is perfectly legal, and quite common in California, for victims who have the resources to hire private investigators to gather photographic evidence of the defendant to try and prove that they were stalking the victim. Cases, where the victim was stalked, are by far the most common for civil harassment restraining orders and if proven, will quickly result in a PRO being handed down by the judge.
Medical records and/or police reports. It is critical to create a paper trail of any harassing and/or abusive interactions between the defendant and the victim. This will help an attorney effectively build their case for or against the imposition of a PRO.