However, that a special relationship does not need to be shown to obtain a civil harassment restraining order does not mean that a person can get such a restraining order against anyone. A litigant seeking a civil harassment restraining order is required to show proof of behavior that constitutes harassment. At Underwood Law Firm, our attorneys are more than familiar with civil harassment restraining orders.
Code of Civil Procedure 527.6
The requirements for a civil harassment restraining order are codified in the Code of Civil Procedure section 527.6. Under section 527.6, a party seeking a civil harassment restraining order must show that either a credible threat of violence or harassment exists. (CCP § 527.6.)
Section 527.6 defines a credible threat of violence as knowing or willful behavior that serves no legitimate purpose and would place a reasonable person in fear for the person’s safety or the safety of the person’s immediate family. (CCP § 527.6(b)(2).)
Harassment is defined 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. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner.” (CCP § 527.6(b)(3).) Unlawful violence constitutes any assault, battery, or stalking. (CCP § 527.6(b)(7).)
It is important to note, however, that such behavior cannot be a mere instance of harassment. Section 527.6 requires that the behavior constituting harassment be a pattern of conduct/series of acts. (CCP § 527.6(b)(1).) For example, “Shawn” and “Julie” dated for four months before Julie decided she needed to take a break from the relationship. One week after they broke up, Shawn called Julie through an unknown number, threatening to hurt her. The calls continued, and eventually, Shawn would call Julie every few days, threatening her life. Julie now has extreme anxiety. Julie sleeps with a knife under her pillow and asks her brother and friends to accompany her every time she needs to leave the house. Most nights, Julie cannot sleep through the night in fear that Shawn will break into her house. In this instance, Julie would be able to get a civil harassment restraining order because Shawn’s phone calls were not a one-time act, and Julie has suffered severe emotional distress.
Conduct that Serves a Legitimate Purpose
As set forth in section 527.6, the alleged harassment or credible threat of violence must not serve a legitimate purpose. Therefore, if the conduct being complained of is conduct that does actually serve a legitimate purpose, then it is not harassment or a credible threat of violence pursuant to Code of Civil Procedure section 527.6. For example, in Byers v. Cathcart (1997) 57 Cal.App.4th 805, 67 Cal.Rptr.2d 398, an adjacent homeowner filed an application for an antiharassment injunction against a homeowner who had an easement to use the adjacent homeowner’s driveway.
There, the trial court granted the restraining order. (Id.) The Court of Appeals reversed the trial court’s holding granting the restraining order to prevent the homeowner from parking the car according to the easement. (Id.) The Court of Appeals reasoned that parking a car is not conduct that has no legitimate purpose, nor was the parking specifically done to annoy the adjacent homeowner. (Id. at 807)
Ex Parte Application
A civil harassment restraining order is a type of temporary restraining order. Typically, when applying for a temporary restraining order, a litigant must give notice to the other party of the temporary restraining order. However, a temporary restraining order may be granted without notice or ex parte. To get a civil harassment restraining order ex parte, a person must show that in addition to the harassment, they will suffer irreparable harm without the civil harassment restraining order. (CCP § 527.6(d).)
Modification of a Civil Harassment Restraining Order
Either party to a civil harassment restraining order may bring a motion to modify or terminate said restraining order. (Yost v. Forestiere (2020) 51 Cal.App.5th 509, 522, 265 Cal.Rptr.3d 175.) Under section 527.6, within the discretion of the court, a civil harassment restraining order may not have a duration of more than five years and is subject to termination or modification by further order of the court. (CCP § 527.6(j)(1).) Therefore, modifications to a civil harassment restraining order are discretionary. (Yost, 51 Cal.App.5th 509, 522.)
Further, under Code of Civil Procedure section 533, a court may modify or terminate a civil harassment restraining order when there has been a material change in the facts for which the restraining order was granted. (CCP § 533.) Section 533 gives three bases upon which a civil harassment restraining order may be modified/terminated: served by a modification or termination. (Id.)
How Can the Attorneys at the Underwood Law Firm Assist You?
A civil harassment restraining order is a temporary restraining order prohibiting harassment against a person who has suffered from said harassment. For a person to obtain a civil harassment restraining order, they must show evidence of a credible threat of violence or harassment. Also, such conduct has to be a series of acts and not just a mere instance of harassment.
As each case is unique, litigants would be well-served to seek experienced counsel familiar with the ins and outs of civil harassment restraining orders and the law surrounding them. At the Underwood Law Firm, our knowledgeable attorneys are here to help. If you believe you need a civil harassment restraining order, are worried about your ability to get a civil harassment restraining order, or if you just have questions, please do not hesitate to contact our office.
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