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What Is Civil Harassment?
In general, civil harassment is abuse, threats of abuse, stalking, sexual assault, or serious harassment by someone you have not dated and do NOT have a close relationship with, like a neighbor, a roommate, or a friend (that you have never dated). It is also civil harassment if the abuse is from a family member that is not included in the list under domestic violence. So, for example, if the abuse is from an uncle or aunt, a niece or nephew, or a cousin, it is considered civil harassment and NOT domestic violence.The civil harassment laws say “harassment” is
- Unlawful violence, like assault or battery or stalking
- A credible (real) threat of violence
- The violence or threats seriously scare, annoy, or harass someone and there is no valid reason for it
“Credible threat of violence” means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family. A “credible threat of violence” includes following or stalking someone, making harassing calls, or sending harassing messages, by phone, mail, or e-mail, over a period of time (even if it is a short time).
Read about the law in Code of Civil Procedure section 527.6.
Civil Harassment Restraining Orders
A civil harassment restraining order is a court order that helps protect people from violence, stalking, serious harassment, or threats of violence.You can ask for a civil harassment restraining order if:
- A person has abused (or threatened to abuse), sexually assaulted, stalked, or seriously harassed you
- You are scared or seriously annoyed or harassed
- Your spouse/partner or former spouse/partner
- Someone you dated at any point
- A close relative (parent, child, brother, sister, grandmother, grandfather, in-law)
- A neighbor
- A roommate (as long as you never dated)
- A friend
- A family member more than 2 degrees removed, like an aunt or uncle, a niece or nephew, cousins, and more distant relatives
- Other people you are not closely related to
Important: If you are 65 or older or a dependent adult, you can file a civil harassment restraining order against someone you are not close to, BUT you can ALSO file an elder or dependent adult abuse restraining order, which may be better for you because you may be able to get more help before, during, and after the court case.If you do not qualify for a civil harassment restraining order, there are other kinds of orders you may be able to ask for:
- Domestic violence restraining order (for protection from people you were involved with romantically at some point or close family members). Get more information on getting a domestic violence restraining order
- Elder or dependent adult abuse restraining order (if the person being abused is 65 or older, or between 18 and 64 and a dependent adult). Get more information on getting an elder or dependent adult abuse restraining order
- Workplace violence restraining order (filed by an employer to protect an employee from violence, stalking, or harassment by another person). Get more information on getting a workplace violence restraining order
If you are not sure what kind of restraining order you should get, talk to a lawyer. Click for help finding a lawyer. Also, your court’s family law facilitator or self-help center may be able to help you. And your local legal services offices may also be able to help you or refer you to someone who can.
What Can a Restraining Order Do?A restraining order is a court order. It can order the restrained person to:
- Not contact you or any member of your household
- Not go near you, your children, or others who live with you, no matter where you go
- Stay away from your work, your school, or your children’s school
- Not have a gun
Once the court issues (makes) a restraining order, it goes into a statewide computer system. This means that law enforcement officers across California can see there is a restraining order in place.
Effect of a Restraining Order on the Restrained PersonFor the person to be restrained, the consequences of having a court order against him or her can be very severe.
- He or she will not be able to go to certain places or to do certain things
- He or she will generally not be able to own a gun. (And he or she will have to turn in or sell any guns he or she has and will not be able to buy a gun while the restraining order is in effect.)
- The restraining order may affect his or her immigration status. If you are a person to be restrained and you are worried about this, talk to an immigration lawyer to find out if you will be affected
If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both.
Types of Civil Harassment Restraining Orders
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So a police officer that answers a call because of serious violence or a serious threat can ask a judge for an emergency protective order at any time of the day or night.
The emergency protective order starts immediately and can last up to 7 days. The judge can order the abusive person to leave the home (if they live with you) and stay away from you and your children for up to a week. That gives you enough time to go to court to file for a temporary restraining order.
To get a more permanent order, you first must ask the court for a temporary restraining order (also called a “TRO”).
Temporary Restraining Order (TRO)
When you go to court to ask for a civil harassment restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order.
Temporary restraining orders usually last about 20 to 25 days, until the court hearing date.
“Permanent” Restraining Order (Restraining Order After Hearing)
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years.
Criminal Protective Order or “Stay-Away” Order
Sometimes, when there is an incident of violence or severe harassment (or series of incidents), the district attorney will file criminal charges against the person committing the violence. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) that is effective while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.
The Restraining Order Process
When someone asks for a civil harassment restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are:
1. The person wanting protection files court forms asking for the civil harassment restraining order
2. The judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner. Then, the clerk will set a date for a hearing3. If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until your court date. The court date will be on the paperwork. These temporary orders can include issues like:
- Ordering the restrained person to have no contact (including no phone calls or e-mails) with the protected person (and other protected people)
- Ordering the restrained person to stay away from the protected person (and other protected people
4. The person asking for protection will have to “serve” the other person with a copy of all the restraining order papers before the court date. This means that someone 18 or older (NOT involved in the case) must hand-deliver a copy of all the papers to the restrained person5. Both sides go to the court hearing
- If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will no longer be a restraining order
- If the restrained person does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account
6. At the hearing, the judge will decide to continue or cancel the temporary restraining order. If the judge decides to extend the temporary order, the “permanent” order may last for up to 3 years
Guardian Ad Litem
The plaintiff or defendant may be an individual, a partnership, a business, a corporation, or a government agency. If the plaintiff or defendant is a minor, conservatee or incompetent person, then a Guardian Ad Litem must be appointed by the court to represent the minor, conservatee or incompetent person in each case. Information on parties to civil actions is set forth in detail in CCP 367-389.
There is a category of filing for collections cases that are exempt from the fast track rules governing the timelines to bring the cases to trial (CRC 3.740). In many cases involving collections the defendant does not respond and the matter goes to judgment by default. A case management conference is not set unless a defendant responds. If there is a response, the collections case is no longer handled in an expedited manner and must go through the general civil fast track and trial readiness processes.
To learn about options for resolving many types of debts, before or after a court case is started, or if someone is trying to collect a debt that you dispute or are unable to pay, watching this video from the California Courts’ website may be helpful: Click Here to Watch Video
Maintenance of Cases
Once cases are dispositions by dismissal or judgment the file, register of actions and exhibits are maintained for a certain period of time. The minimum retention period for records varies and is covered under Section 68152 of the Government Code. The records may be destroyed upon an order by the presiding judge once the time limits have passed.
Commencement of the Case
A civil action is commenced by filing a complaint with the court (CCP 411.10). Occasionally, a complaint may not be the initiating document. For example, a Confession of Judgment can commence a civil action, but most of the time the complaint is the document filed to commence a civil action. Complaints and other documents may be prepared and filed on Judicial Council forms, or if no form exists, a pleading must be drafted and be in the proper legal format, pursuant to CRC 2.100 and following. The San Bernardino County Law Library has books with formats and examples for drafting pleadings of different types.
The complaint or pleading must be filed with some basic documents, including a Certificate of Assignment and a Civil Case Cover Sheet, and accompanied by a filing fee or valid application and proposed order granting a fee waiver. A governmental agency does not pay a fee at the time of filing but must put the government code that allows the waiver of fees on the face of the complaint or pleading. The filing fees are due from the governmental agency when a judgment is collected from the party ordered to pay costs.
In most cases, the plaintiff pays the filing fee, or files a fee waiver if eligible, and the clerk files the complaint and issues a summons. A copy of each of the complaint, summons, and supporting documents must be served upon the defendant (CCP 412.10 through 417.40) thereby giving notice that there is a civil action pending.
The summons gives limited direction to the defendant regarding responding to the complaint. It states the court where the case was filed, parties to the suit, and instructs the defendant that the time to respond is 30 days, or they may lose the case. (CCP 412.20) a copy of the summons is usually served on the defendant by a sheriff, marshal, constable, a private process server, mail, publication of summons, or someone over 18 years old who is not a party to the action. (CCP 413.10 - 416.90) The original summons is retained in the court file. The proof of service must be filed with the court. (CCP 417.10 – 417.40) Proof of service is a written statement signed by the server stating that the defendant was given a copy of the summons and complaint. Proof of service forms are available on the Judicial Council website; be sure to use the correct form for proof of service of a summons and complaint rather than a form for a subsequent document. The summons brings the defendant, upon being properly served, under the jurisdiction of the court.
When the defendant has contested the action by filing a proper response the case is “at issue” (at least one response to each complaint is filed, or cross-complaint with no response has been on file for at least 6 months). A civil case not subject to delay reduction may be set for trial when the court so requires, or any party may file a request to proceed with trial. In cases subject to delay reduction (also known as “Fast Track” – see above), the court may require a case management conference, arbitration and a mandatory settlement conference prior to commencement of trial. A Case Management Statement is filed with the court 15 calendar days prior to the case management conference that was scheduled and noticed when the complaint was filed. This document may be filed jointly by all parties, or individually by the plaintiffs and the defendants. This document sets forth facts to support readiness for trial, whether a jury trial is demanded, whether the case is subject to arbitration, etc. (CRC 3.700 and following).
Various methods of alternative dispute resolution (ADR) are used in an attempt to settle the case without a need for trial. An ADR pamphlet is available on the court’s website on the civil page. Certain cases will be subject to mandatory arbitration. Some parties elect to have mediation instead of or in addition to arbitration. The arbitration or mediation proceeding can be binding if agreed upon by the parties. A mandatory settlement conference is held prior to the commencement of the trial. Attorneys, parties and insurance representatives able to settle the case must be present at the conference.
A stipulated judgment may be filed with the court, subsequent to the filing of the complaint up to and including the time of trial on the issues. At some time during that period, the parties may agree to stipulate to the terms of a judgment that specifies how much money is owed to whom and the conditions under which it is to be paid. The stipulation must be signed by both parties or orally entered into on the court record. In some instances, it is the first appearance by the defendant and requires a first appearance fee. By signing the stipulated judgment, the defendant has made a general appearance, so the fee becomes due. The clerk enters the judgment pursuant to stipulation after judicial review.