California: Restraining Orders

  1. Restraining Orders - Overview

    A victim of nonconsensual online publication of sexually explicit material will likely be able to obtain a restraining order that prohibits the perpetrator from continuing to harass the victim online. There are two types of restraining orders that are most likely to be available to a WMC victim: (1) a Domestic Violence Prevention Act (“DVPA”) restraining order, Cal. Fam. Code §§ 6200 et seq.; or (2) a civil harassment restraining order, Cal. Code Civ. Proc. § 527.6.

    There is so much to say about the use of restraining orders to combat nonconsensual pornography that WMC is currently developing Digital Abuse Cheat Sheets that focus specifically on this topic (forthcoming, Summer 2016).

    In the meantime, we will provide a brief overview here, but please know that this section in its current iteration is merely a starting point for your research.

    If you are eligible for a DVPA restraining order (Cal. Fam. Code § 6211 for required relationship), this is probably the way to go because DVPA restraining orders typically offer more protection, and are typically easier to get. We say that they are easier to get because the standard of proof is different. Civil harassment orders require clear and convincing evidence of harassment, Cal. Code Civ. Proc. § 527.6(i), whereas DVPA orders may issue upon a demonstration of “reasonable proof of a past act or acts of ‘abuse.’” (Cal. Fam. Code § 6300.) In addition, the statutory definitions of abuse and harassment are different. Under the domestic violence statute, one nonconsensual porn act can constitute “disturbing the peace” abuse for which an order will issue provided the petitioner can meet the burden of proof. Under the civil harassment scheme, a nonconsensual porn victim is most likely to be arguing “harassment” by “knowing and willful course of conduct,” which requires a course of conduct (more than one act) directed at the petitioner. (Cal. Code Civ. Proc. § 527.6(b)(3).) 

    To determine whether to proceed under domestic violence or civil harassment laws, a WMC victim should consider the following issues with her support team. 

    □ What is the burden of proof for the TRO? 
    □ What is the burden of proof for the order after hearing?
    □ If domestic violence: What is the definition of abuse? 
    □ If civil harassment: What action is covered?
    □ Who can petition? What is the required relationship?
    □ Who can be protected?
    □ What orders can be granted?
    □ What is the duration?

    We have answered those questions for California. See Without My Consent’s forthcoming Digital Abuse Cheat Sheets. 

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  2. Domestic Violence Prevention Act Restraining Order

    1. Introduction

      A victim of domestic violence can obtain several types of restraining orders including an ex parte order that prohibits specific acts. This type of restraining order is appropriate when the perpetrator is a current or former intimate partner or family member of the victim.1

    2. Text of the Statute

      The DVPA contains an express statutory definition of “abuse.” That definition includes any of the following:
      a. intentionally or recklessly causing or attempting to cause bodily injury;
      b. sexual assault;
      c. placing a person in reasonable apprehension of imminent serious bodily injury to that person or another; or
      d. engaging in any behavior that has been or could be enjoined pursuant to Family Code section 6320. (Fam. Code § 6203(a)­(d); In re Marriage of Nadkarni, 173 Cal. App. 4th 1483, 1497 (Cal. App. 6th Dist. 2009)

      Family Code section 6320 provides that “the requisite abuse need not be actual infliction of physical injury or assault.”2 This is in keeping with the notion that “domestic violence” is not limited to physical injury, but also includes the concepts of psychological and emotional abuse.3 In recognition of the broad array of conduct engaged in by abusers, Family Code section 6320 lists several types of nonviolent conduct that may appropriately result in the issuance of a protective order. The behaviors described in section 6320 which may result in a protective order include any of the following: threatening, harassing, contacting, disturbing the peace of or coming within a specified distance of another person. (Fam. Code § 6320(a).) “Disturbing the peace” in the context of the DVPA means to destroy the mental or emotional calm of the other party. In re Marriage of Nadkarni, 173 Cal. App. 4th 1483, 1497 (Cal. App. 6th Dist. 2009). This can be done through non­violent means, such as digital abuse in the form of nonconsensual porn.

    3. Cases

      1. Grier v. Truong, No. A139010, 2014 WL 2129519 (Cal. Ct. App. May 22, 2014).

        • Procedural Posture: Appellant appealed a domestic violence restraining order directing that he not harass or contact his ex-wife, the respondent, or respondent’s husband.

        • Law:  Domestic Violence Prevention Act—Cal. Fam. Code, § 6200 et. seq. 

        • Facts:  Respondent alleged that appellant, among other things, (1) threatened to kill her and her husband; (2) stalked and harassed her by hacking into her e-mails, bank accounts and phone records; and (3) created fake dating profiles and other online accounts in her husband’s name.

        • Outcome: The court affirmed the restraining order, stating: “[Appellant] presented substantial evidence that [respondent] was harassing her and her husband by, among other things, threatening to kill them, accessing her confidential e-mail account, concocting and disseminating false e-mail correspondence purportedly to show that [respondent] conspired to defraud her employer and the court, and sending [respondent] and her sisters false and disparaging information about her husband. This conduct is readily within the scope of the DVPA, which provides expansive protection against myriad forms of domestic violence, both physical and non-physical.”

      2. In re Marriage of Nadkarni, 93 Cal. Rptr. 3d 723 (Cal. Ct. App. 2009).

        • Procedural Posture: Ex-wife appealed denial of the extension of a Domestic Violence Prevention Act restraining order against her ex-husband.

        • Law: Domestic Violence Restraining Order—Cal. Fam. Code § 6320; Civil Harassment—Cal. Civ. Proc. § 527(b); Civil Stalking Statute—Cal. Civ. Code § 1708.7

        • Facts: Following a divorce, ex-wife found out that ex-husband had accessed her email account because he introduced evidence from her email account in court documents during child custody proceedings. Ex-wife sought restraining order to stop her husband from accessing her email, and return all of the material he had obtained. She received a temporary restraining order, but was denied an extension. The temporary restraining order enjoined the ex-husband from “engag[ing] in any behavior that has been or could be enjoined such as blackmail, slander, stalking, threatening, harassing, and disturbing the peace of [ex-wife] or third parties through the use of personal information accessed through [ex-wife’s] email.” Ex-wife was concerned that content from emails would be used to publicly humiliate her:

          "I am also quite disturbed by [ex-husband's] statement [in his August 31, 2007 supplemental declaration] ... ‘that I have procured more evidence from the above-mentioned email accounts, which could be considered inflammatory and sensitive to certain others. I have no intention to share these emails other than as evidence in future legal proceedings.’ Given that the information was in my email account, I believe this statement is a direct threat that unless I succumb to his demands in the family law case, he will interfere and directly impact my business relationships. I also believe he will file my personal emails in the family court action in order to embarrass me, and to injure my relationships with my family members and third-parties, including professional clients."
        • Outcome: Denial of restraining order reversed, trial court was instructed to hold a hearing on the merits of the application for restraining order and allow presentation of additional evidence.

    4. Practice Pointers

      See Without My Consent’s forthcoming Digital Abuse Cheat Sheets, which will be made available on WMC’s resources page.

    1. See Cal. Fam. Code § 6200 et seq. (West 2011) (replaced former Civil Code § 541).
    2. Conness v. Satram, 122 Cal. App. 4th 197, 202 (Cal. App. 1st Dist. 2004).
    3. Pugliese v. Superior Court, 146 Cal. App. 4th 1444, 1452 (Cal. App. 2d Dist. 2007).
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  3. Civil Harassment Restraining Order

    1. Introduction

      If the victim does not meet the relationship requirement of the DVPA (which includes dating/former dating partners — see FC § 6211), s/he may seek a civil harassment restraining order.

    2. Text of the Statute

      Cal. Code of Civil Procedure § 527.6

      “(a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.

      (b) For the purposes of this section, "harassment" is 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 such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.

      As used in this subdivision:

      (1) "Unlawful violence" is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.

      (2) "Credible threat of violence" is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.

      (3) "Course of conduct" is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of "course of conduct. [. . .]”

    3. Cases

      1. Shoemaker v. Gianopoulos, No. H038576, 2014 WL 320061 (Cal. Ct. App. Jan. 29, 2014).

        • Procedural Posture: Defendant appealed a Code of Civil Procedure section 527.6 civil harassment restraining order prohibiting him from harassing plaintiff for a period of three years.

        • Law: Cal. Code of Civil Procedure § 527.6

        • Facts: Plaintiff alleged that, following a failed lawsuit against plaintiff’s employer, defendant began to harass her and her coworkers by, among other things, (1) posting plaintiff’s personal information and photographs of her home on numerous websites; (2) placing advertisements online and in newspapers alleging that plaintiff engaged in deviant sexual acts, perjury and blackmail; and (3) associating a telephone number with plaintiff’s business in the Yellow Pages and on so that a recording would play alleging that plaintiff and others had engaged in criminal acts of perversion against a patient.

        • Outcome: The court found that the May 29, 2012 restraining order placed restrictions on the subject matter of defendant’s speech rather than on the time, place or manner of his speech. As a result, the restraining order was reversed. While the court determined that the alleged harassing activity did occur, on the separate legal question of whether the facts were legally sufficient to constitute civil harassment under section 527.6 and whether the restraining order was constitutional, it found that the restraining order in the case would constitute a prior restraint on speech.

      2. M.G. v. R.D. , No. B159974, 2003 Westlaw 21129878 (Cal. Ct. App. May 16, 2003).

        • Procedural Posture: Defendant appeals injunction prohibiting harassment of plaintiff, his former boyfriend.

        • Law: Cal. Code Civ. Pro. § 527.6; First Amendment

        • Facts: Among other offensive actions, defendant sent the following email to plaintiff: “Hey, look what I found. Remember this? I must have made about three-dozen that I converted to digital quite sometime ago.... The problem is I don't know what to do with [them] now[.] [¶] ... I ... have all of your friends' email addresses. Perhaps I will send them a copy or copies.... Or should I just post them on the net? ... [¶] ... How does it feel to be betrayed by someone you once love[d]?”1

        • Outcome:

          • Injunction affirmed.
          • Text of restraining order: “IT IS ORDERED THAT DEFENDANT [¶] a. shall not contact, molest, harass, attack, strike, threaten, sexually assault, batter, telephone, send any messages to, follow, stalk, destroy the personal property of, disturb the peace of, keep under surveillance, or block movements in public places or thoroughfares of [¶] the person seeking the order ... [¶] b. shall stay at least ... 100 yards away from the following protected persons and places: [¶] (1) Person seeking the order [¶] ... [¶] (3) Residence of person seeking the order [¶] (4) Place of work of person seeking the order [¶] ... [¶] (6) Other (specify): US MARINE CORP TROOP OF PERSON SEEKING ORDER.”2
          • Court also quickly dismissed defendant’s free speech argument: “The trial court's order simply enjoins defendant from harassing plaintiff and requires defendant to stay at least 100 yards away from certain specified locations. The order does not implicate defendant's rights of free speech and assembly.”3
          • Plaintiff was awarded attorney costs for appeal.
        • Initials were used in this case. The docket, however, reveals both the defendant and plaintiff's names.

        • [Note: Per LA Times article, defendant lost his job at LAPD after being outed as homosexual as a result of this case.]

      3. Falossi v. Koenig , No. E048400, 2010 Westlaw 4380112 (Cal. Ct. App. November 5, 2010).

        • Procedural Posture: Defendant appeals permanent injunction.

        • Law: Cal. Code Civ. Pro. § 527.6; First Amendment

        • Facts: Case involved feuding neighbors who videotaped and photographed each other as a form of harassment. The feud continued for years with many small incidents, but no major incidents (e.g. defendant hung a hammock near plaintiff's home, plaintiff then parked a large van in front of the hammock, defendant subsequently filed zoning complaints against plaintiff). Permanent injunction ordered by trial court stated: “[Defendant] is not to photograph any member of the [plaintiff's] family. Defendant is to surrender any images or photos stored on any medium of the [plaintiff's] family to the Sheriff's Department,” and required that defendant stay 50 yards from the plaintiff’s home.

        • Outcome: The section of the injunction ordering defendant to surrender images to the sheriff was removed and stricken as overbroad. The section of the injunction regarding staying 50 yards away was remanded for clarification.

        • Practice Pointer: Plaintiff was awarded costs of appeal.

      4. Smith v. Hance , No. D047471, 2007 Cal. App. Unpub. LEXIS 3630 (Cal. Ct. App. May 4, 2007).

        • Procedural Posture: Appellants appealed from an order issuing an injunction against harassment under CA Code of Civ. Pro. §527.6. in favor of appellee. The restraining order prohibited appellants from taking photographs or videos of the appellee's home, driveway, garage, yard or vehicles. Appellants argued that their photographic activity was communicative and constitutionally protected.

        • Law: Civil; CA Code of Civ. Pro. §527.6 – temporary restraining order and injunction prohibiting harassment.

          [Appellee had brought an action against appellants claiming emotional distress, assault and private and public nuisance. The court of appeals reviewed the trial court’s decision based on Cal. Code of Civ. Pro. §527.6 and did not discuss the trial court’s finding on the assault claim.]

        • Facts: Appelle and appellants are neighbors and have been involved in long standing disputes over various matters. Appellants incessantly photographed appellee's family, residence and vehicles on the premise that they were recording Municipal Code violations.

        • Outcome: Affirmed.

          The court held that after the City finished reviewing the municipal code violations, appellants did not have any justification for taking additional photographs. The injunction allowed appellants to continue filing complaints with the City either orally or in writing. The trial court’s order did not unreasonably curtail appellants’ right to petition since “for purposes of any future complaints [appellants] can provide an oral or written description of any observations they make to the City.”

          “[Appellants'] nonexpressive photograph taking…is not constitutionally protected, and the injunction prohibiting that conduct does not violate the First Amendment.” ‘In California, speech that constitutes “harassment” within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.’ “The right to free speech ‘does not include the right to repeatedly invade another person’s constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress.’”4

        • Attorney Fees: The court concluded that appellee was entitled to an award of attorney fees under Civil Code § 1717 and under paragraph 5 of the Memorandum of Understanding.

    4. Practice Pointers

      Under this statute, the petitioner first receives a temporary restraining order,5 and within 15 days a hearing is held where the court decides whether unlawful harassment exists.6 The standard of proof for continuing the restraining order, making it non-temporary, is by clear and convincing evidence.7 The prevailing party may be awarded attorney fees.8

      There are several websites that provide information about how to obtain these protective orders:

    1. M.G. v. R.D., No. B159974, 2003 Westlaw 21129878, at *3 (Cal. Ct. App. May 16, 2003).
    2. Id.
    3. Id. at *3.
    4. Smith v. Hance, No. D047471, 2007 Cal. App. Unpub. LEXIS 3630 (Cal. Ct. App. May 4, 2007) (citing People v. Borrelli 77 Cal.App.4th 703).
    5. See subd. (c).
    6. See subd. (c).
    7. See Id.
    8. See subd. (j).
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