Using Restraining Orders to Deal with Threatening Neighbors and Other Harassment

A frequent call a general practice attorney or law firm like Janssen Malloy LLP might receive, unfortunately, is from an individual who feels harassed because he or she has been threatened by a neighbor, coworker, or some other relation. The neighbor scenario can be particularly vexing, because all too often a disagreement about a property boundary line, easement, fence, or any number of issues that may arise between two neighboring landowners can and should be resolved informally, or in the worst cases, through routine civil litigation.  
When the relationship between the parties – the party allegedly doing the harassing, known as the “restrained person,” and the party complaining of harassment and requesting the restraining order, known as the “protected person”, does not involve a family or dating relationship, any restraining order case will be pursuant to the Civil Harassment Restraining Order statute, Code of Civil Procedure (“CCP”) section 527.6. There are some special cases that either overlap with the Civil Harassment Restraining Order statute or stand apart, and they are briefly discussed below. There are three alternative ways of proving civil harassment. First, any act of physical violence committed by the restrained person against the protected person that was unjustified, i.e., the protected person was not acting in self-defense or in defense of others, qualifies as “harassment.” Second, a credible threat of violence that seriously scares the protected person.  Finally, a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the protected person and that serves no legitimate purpose.
The protected person files a petition with the court listing, among other things, the additional family and/or household members seeking protection, the act(s) or threat(s) that constitute civil harassment, and whether the protected person seeks immediate orders of protection from the court. In its initial review of the petition, the court may order that the restrained person not have any contact with and stay up to 100 yards away from the protected person, and make other temporary orders that will be in place until the conclusion of an evidentiary hearing in front of a judge, not a jury, which is effectively the trial in the case. At the same time, the court will also set that evidentiary hearing date a few weeks in the future and return all documents to the protected person and/or the Sheriff’s Office so that the restrained person can be served. If served at least five days prior to the evidentiary hearing, service is valid and the restrained person must appear in court for the hearing if he or she wants to challenge the protected person’s requested orders.
Civil Harassment Restraining Orders involve somewhat simplified procedures and forms. They are designed to be much faster and easier for the parties to represent themselves, i.e., not hire an attorney, than general civil litigation. However, having an experienced trial attorney tends to give a party a natural advantage over an unrepresented opposing party. For that reason, prospective clients involved in restraining order litigation sometimes contact Janssen Malloy LLP only after the opposing party has retained an attorney, who in turn has filed motions, issued subpoenas, petitioned on behalf of the would-be restrained person for a restraining order against the would-be protected person, or otherwise complicated what might have been a fairly straightforward proceeding. Effective representation and advocacy at the evidentiary hearing can be a difference-maker for either party. Finally, the stakes may be even higher once an attorney is involved, as either party that prevails at the evidentiary hearing may subsequently file a motion requesting that the court order that the losing party pay its attorney’s fees and court costs, if any.
As noted above, Civil Harassment is not the only form of restraining order in California law. Domestic Violence Restraining Orders cover a slightly broader range of conduct, including stalking, but pertain to certain family and/or dating-type relationships defined by the Family Code only. The Workplace Violence Restraining Order statute allows employers to petition on behalf of their employees for court protection. The Elder and Dependent Adult Abuse Act provides for a particular restraining order for those especially vulnerable populations. Finally, law enforcement such as police officers and the District Attorney’s Office can request Emergency Protective Orders and Criminal Protective Orders, respectively, when they determine and represent to the court that a crime has been committed and that the alleged victim or in some cases even witnesses need the court’s protection.
If you ever find yourself either the subject of or accused of such harassment, contact our firm to schedule a consultation.