What is a Civil Harassment Restraining Order?
When one thinks of restraining orders, the first thing that may come to mind is domestic violence restraining orders (DVROs) which are issued by the family court and used to enjoin violence, stalking, harassing and similar behavior between parties who have a blood or familial relationship. For instance, married parties, couples who used to be in a dating relationship, siblings and similar relatives can seek DVRO protection through the family court.
But what if you are having trouble with a work colleague, neighbor, fellow parishioner at your church (yes, it happens!)? Enter the civil harassment restraining order. (CHRO) I look at these as a “distant cousin” of the family court DVRO. They are governed by the California Code of Civil Procedure, as opposed to the California Family Code, and in many counties, they are heard by different judges. That said, they are designed to eradicate many of the same issues as a DVRO – violence or threats of violence, harassment, annoying and abusive behavior, etc.
Like their family law counterparts, the court enters civil harassment restraining orders into the California Law Enforcement Telecommunications (CLETS) database. This is the computer network that connects public safety agencies across the state and beyond to criminal histories, driver records and other databases. Having a restraining order of either form entered into the CLETS database could prove troublesome in obtaining housing or employment.
Burdens of Proof
In our legal system, there are three levels of burdens of proof. That is, the standard or degree by which the party asking the court to do something must prove their case in order to prevail.
- In a criminal case, the burden is on the government to prove their case beyond a reasonable doubt, the highest legal standard in the American justice system.
- In most civil cases, such as car accidents, real estate disputes or employment law matters, the plaintiff must prove their case by a mere preponderance of evidence. Picture in your mind’s eye Lady Justice with her scales. A preponderance of evidence means her scales tip ever so slightly toward one party.
- Where particularly important individual interests or rights are at stake, a plaintiff must prove their case by clear and convincing evidence. In recognition of the seriousness of a restraining order in the CLETS database, this is the burden of proof required for issuance of a civil harassment restraining order. While not quite rising to the level of guilt beyond a reasonable doubt, this is a much higher evidentiary burden than is required for a preponderance of the evidence as in most other civil law matters. The party seeking the civil harassment restraining order must persuade the court that it is highly probable the facts are true.
Elements of a Civil Harassment Restraining Order
There are very precise things that a petitioner must prove to convince a court by clear and convincing evidence to warrant issuance of a civil harassment restraining order. In the law, we call these “elements.” California Code of Civil Procedure section 527.6 provides the party asking for the civil harassment restraining order must prove 1) a course of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose; 2) directed at a specific person; that 3) seriously alarms, annoys or harasses that person; 4) that serves no legitimate purpose; 5) which would cause a reasonable person to suffer substantial emotional distress; 6) which actually causes substantial distress to the plaintiff and; 7) which is not constitutionally protected activity.
In addition to the 7 items above, the court must also find that there is a reasonable probability of future harm absent the issuance of the civil harassment restraining order. Such an order is a form of injunction which serves to prevent future injury. It is NOT intended to redress past wrongs.
If this sounds onerous, one could say it is by design and for the purpose of ensuring an applicant does not use a civil harassment restraining order for an improper reason. It has been my experience over many years of practice that the courts do not take lightly the issuance of a protective order that causes the other party to have their name in the CLETS database. By the same token, courts do not hesitate to issue a civil harassment restraining order when so warranted by the facts and circumstances.
Why Does the Court Dismiss Some Civil Harassment Restraining Orders?
Every one of the elements above must be proven by clear and convincing evidence. So, for example, an isolated incident which is not likely to be repeated would not generally give rise to issuance of a civil harassment restraining order, unless it is something particularly egregious. Many an application for a permanent civil harassment restraining order has also failed because of the inability of the petitioner to produce clear and convincing evidence of substantial emotional distress. In this crazy fast paced modern world in which we all live, it is be expected that most of us will endure some level of emotional distress at the hands of our fellow humans. Only emotional distress that no reasonable person in a civilized society should be expected to endure gives rise to satisfaction of element number six above. This often times entails production of medical or psychological evidence of suffering as opposed to the party’s testimony that the conduct was offensive and annoying.
Maximize Your Chances of Prevailing
Even the most pleasant neighbors can sometimes be annoying. Do not file for a civil harassment restraining order if your otherwise civilized neighbors occasionally throw a noisy party. Do not file for a civil harassment restraining order if your otherwise decent neighbors occasionally mow their lawn or fire up their chainsaw a little earlier or later than you like. Do not attempt to use a civil harassment restraining order as a bullying device or as a punitive measure. By the same token, all of us deserve to live in relative peace, free from unduly annoying or harassing behavior. If you believe a civil harassment restraining order is warranted, pay close attention to the elements you are required to meet.
Do not feel like you must bolster your application for a civil harassment restraining order by tacking on trivial incidents in an effort to establish a patent of conduct. Focus on specific, disturbing acts or threats and be prepared to articulate why and how this caused you to suffer severe emotional distress.
A civil harassment restraining order is powerful legal tool. If you believe you have a need for a civil harassment restraining order, or find yourself on the receiving end of one, contact Cornwall Family Law today to schedule a consultation. One of our skilled attorneys can help you evaluate your situation and give you a candid assessment of your options. Also, like and follow our Facebook page to get the most up to date information!
