What Does it Take to Get a Civil Harassment Restraining Order

Civil Harassment is different that Domestic Violence. In a domestic violence action there must be some relationship between the parties. This relationship would be having children together, having lived with the other person, having dated the person to be restrained, being married to the restrained person, etc. In a Civil Harassment proceeding there is no such relationship. There is no close relationship required to obtain a civil harassment restraining order. Additionally Domestic Violence cases in Santa Clara County are filed in the Family Law Court. While Civil Harassment Restraining order requests are filed in the Civil Court House and are a civil matter not a family law matter.

Civil Harassment as is defined by Code of Civil Procedure section 527.6. It is essentially any evidence, (standard of proof is clear and convincing) that the party to be restrained has harassed or threatened the requesting party. Behavior which will result in a civil harassment restraining order consists of the following:

assault, battery or stalking
a credible threat of violence which a reasonable person would be placed in fear for their safety
a course of conduct which is designed to vex, harass, annoy which has no legitimate purpose

The requirement is that a reasonable person would fear for their safety and that the behavior to be enjoined serves no legitimate purpose or is not permitted by law. However, once you have shown any of the forgoing, you must also show by admissible evidence that the harassment has caused you emotional distress and that your emotional distress was reasonable. You then have yet another hurdle, that being you must show that unless the court issues a restraining order against the defendant that you will suffer irreparable harm or there will be violence which will occur in the future. Again the standard to show all of the forgoing is clear and convincing evidence. Any failure on your part to present evidence supporting any of the three prong test results in a denial of your request.

Often clients will want a civil harassment restraining order and will cite that a threat had been made to them. It is not just the making of the threat, but that the threat must be credible. A credible threat of violence is statement, written or oral, that would cause a reasonable person to fear for their safety or other family members. Again, you must also show that there was no legitimate purpose for the threat and you must show that the threat was made intentionally by the defendant. You do not have to show that the defendant intended to carry out the threat

The other action that may result in a civil harassment restraining order is a "Course of conduct". Just what is this course of conduct? A course of conduct is a pattern of conduct or a a series of acts over a period of time by the defendant. There is not set length of time and it may be very short, but, it does have to show a pattern. If the defendant has engaged in a single action or conduct this is not sufficient. It must be repeated. This includes staking. Other considerations

If you prevail on a request for a civil harassment restraining order, and you have an attorney, you will be entitled to have your attorney fees paid by the defendant. However, should you lose on a request for a civil harassment restraining order you may be ordered to pay the attorney fees of the defendant. This is a very valid consideration.

Clients will also either be afraid that they will be sued by the defendant should they lose. Such a lawsuit would be a malicious prosecution action. The plaintiff is protected from civil liability from malicious prosecution actions in California. The only thing that a defendant can do is seek attorney fees and monetary sanctions against the unsuccessful plaintiff pursuant to statute.

Lastly there is a further impact on a defendant should a civil harassment restraining order be granted by the court. If a Civil Harassment Restraining Order is granted by the court, the defendant cannot own a firearm or ammunition during the term of the protective order. A defendant who retains a firearm or ammunition after a civil harassment restraining order is issued will be guilty of a felony in California. Any firearms owned or possessed by a defendant who has had a civil harassment restraining order issued against them must surrender them to a licensed firearms dealer or law enforcement within 24 hours of the issuance of the order.