Obtaining a Restraining Order for harassment is not as easy as it sounds


My office receives numerous inquiries each year regarding the process to obtain a restraining order in California based on "harassment." Many of the inquiries stem from alleged false social media postings, or excessive social media posting by a scorned lover. In today's society it is much more common for an aggrieved party in a romantic breakup to stay in contact with their significant other by way of social media. These matters are coming before the court on an increasing basis.

The problem for litigants seeking this type of order from the court is that in California obtaining a permanent harassment restraining order requires a high threshhold of proof. In most civil cases, the moving party must prove their claims utilizing the "more probable than not" evidentiary standard. This is evidentiary bar is far less stringent than the criminal burden of "beyond a reasonable doubt." However, for harassment restraining orders, which are not permanent and expire at the conclusion of three years, the court utilizes a middle ground of "clear and convincing" evidence. This burden is fully laid out in the statute governing restraining orders, California Code of Civil Procedure 527.60.

Section 527.6 of the Code of Civil Procedure was enacted by the California Legislature "to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution." The purpose of this statute was to provide expedited injunctive relief to victims of "harassment." (Smith v. Silvey (1983) 149 Cal. App.3d 400, 405 [197 Cal. Rptr. 15].)

The statute itself defines harassment as "a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff." The statute then defines "[c]ourse of conduct" as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose"; and it expressly states that "[c]onstitutionally protected activity is not included within the meaning of `course of conduct.'" (Code Civ. Proc., § 527.6, subd. (b).)

Therefore, in order to prevail and obtain a permanent restraining order based on harassment the conduct alleged must be severe. Further, as mentioned earlier, the burden of proof is enhanced. Section 527.6 of the Code of Civil Procedure states, "At the hearing, the judge shall receive such testimony as is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment." (Code Civ. Proc., § 527.6, subd. (d)., bold added)

In light of the above, a few negative social media postings, or small sample of derogatory Facebook comments, will likely not persuade the judge to issue a permanent restraining order. Again, this is the process for seeking to restrain someone’s liberty/freedom of movement. There are other remedies available to the aggrieved party in addition to a restraining order. There is always the civil court system (money award only) if an individual has been slandered, or been the victim of any other wrongful civil conduct. In this judicial system the trier of fact (jury) will determine the amount, if any, of any money awarded to the aggrieved party for injuries.

So before you run to the courthouse, or pay that large retainer fee to a lawyer, it is wise to think twice as to whether your claims are (a) serious and (b) satisfy the "clear and convincing" evidentiary burden. If you, or anyone you know, has questions regarding restraining orders in California please feel free to call the attorneys at Eberhardt Law Group for help. The call is free: (714) 551-9996.

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