This article was authored by Lawrence A. Strid and was published in the January 2021 issue of Orange County Lawyer, the official publication of the Orange County Bar Association. The article is copyrighted to the Orange County Bar Association but is being republished herein with its permission.
Regardless of your field of practice or expertise, most attorneys at some point in time can expect to receive a call from a potential client over problems they are having with a “bad neighbor”.
Who is actually being the bad neighbor can end up being a subject of great debate.
A typical call will be from somebody who complains that their neighbor (most frequently either across the street or at an adjoining property) is harassing or threatening them. Typical complaints will be that the neighbor in question is calling the police to make bogus complaints; use of profanity directed toward the complainant and/or their family; filming or surveillance of the complainant by use of cell phone and/or surveillance camera; stalking; assault; annoying correspondence (including e-mails); making complaints about the complainant to the homeowners’ association, city, or county; blocking the public street with vehicles so the complainant can’t park there; vandalism; and/or any other number of misdeeds.
The complainant will want the attorney to seek a civil harassment restraining order (CHRO) on their behalf as a petitioner against the offending neighbor, and many times they will have already filed an application for same in a pro per status and are awaiting a hearing date.
Other typical calls may be from a potential client who has already been served as a respondent with a CHRO and application for temporary restraining orders (TRO), and who complains that the allegations are groundless and that they are the real victim. The potential client who has been served with a CHRO may have serious concerns about surrendering their firearms, and which is an inevitable consequence in the granting of any restraining order, and/or they are concerned that the granting of the TRO or a CHRO will be a matter of public record that will show up in any employment or credit related background search. They will be seeking a defense against the CHRO and possibly having a counter-CHRO filed on their own behalf.
At the risk of sounding less than sympathetic, bad neighbor cases are very difficult to resolve in the legal context, either via a CHRO or by way of filing a civil action for tort damages. Fashioning “stay away” orders affecting people who live in close proximity to each other can be difficult to define and enforce. Most people who are victims of a bad neighbor may in fact be better served by a realtor than an attorney. Not surprisingly, most potential clients are incredulous in response to such advice from an attorney.
Assuming that the potential client wants to press forward with legal representation in the capacity of a petitioner or a respondent, then consideration of the grounds for seeking a CHRO, the burden of proof, the admissibility of evidence, the requisite judicial council forms, and settlement prospects need to all be considered.
The Grounds for a CHRO:
Per C.C.P. sec. 527.6, a person who has suffered harassment may seek a TRO and/or an order after a hearing to prohibit the harassment, as provided for in that section.
There are three distinct types of harassment that are actionable under this code section and which are defined as follows:
“Course of Conduct”: This is a pattern of conduct composed of a series of acts over a period of time, no matter how short, evidencing a continuity of purpose such as stalking an individual, harassing phone calls, harassing correspondence by any means, but expressly excluding “constitutionally protected activity”. C.C.P. sec. 527.6(b)(1).
Constitutionally protected activity would certainly include making complaints to a police department or public agency. If the matter complained of is of public interest, then depending on the circumstances involved, such protected activity may also include complaints made to a landlord, homeowners’ association, property management company, or other private person or entity. If it would be privileged conduct in an analysis under the anti-SLAPP statute (C.C.P. sec. 425.16), then it is arguably privileged in an analysis arising under a CHRO action.
Because of the privilege of constitutionally protected activity, neighbor complaints consisting of repeated calls to the police or registering complaints or grievances with various other governmental entities are not going to be enjoined whatsoever.
“Credible Threat of Violence”: This is defined as a knowing and willful threat of violence, or a knowing and willful course of conduct that would place a “reasonable person” in fear for his or her safety or the safety of his immediate family, and that serves no legitimate purpose. C.C.P. sec. 527.6(b)(2).
“Harassment”: These are the grounds most commonly asserted in bad neighbor cases. Under this code sub-section, harassment is defined as unlawful violence or 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 interest. 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 petitioner.” C.C.P. sec. 527.6(b)(3) [emphasis added].
As a practical matter, the petitioner must show a form of harassment that almost or does in fact rise to the equivalent of a criminal act, should they hope to prevail. Bad language or rude and obnoxious behavior in general is not a crime. Taking photographs or videos of people in public where they have no reasonable expectation of privacy is not a crime.
Relief Sought and Requisite Judicial Council Forms:
The typical request for a CHRO will seek a TRO without notice, based solely on the petitioner’s initial moving papers, and to have the TRO orders be continued after a hearing. The petitioner must file and serve a Notice of Hearing (CH-109), a proposed TRO if they want one (CH-110), and a Request for CHRO (CH-100). The petitioner must have the respondent personally served with these pleadings, including a blank response form (CH-120).
Typical orders issued either on a TRO and/or a final order after hearing will include defined stay away orders (i.e., stay at least “25 yards away”) and orders that the respondent is not to contact, annoy, molest, assault, or menace the petitioner. Again, stay away orders are difficult to fashion when dealing with adjoining neighbors who may have no option other than to be in close proximity to the complainant neighbor.
An order after a hearing can last for up to five years, but may be renewed thereafter, and without a showing of additional harassment since the granting of the initial order. C.C.P. sec. 527.6(j)(1).
It is usually a standard provision in a TRO or an order entered after a hearing on a CHRO petition that if the respondent owns firearms, that they must store them with a licensed firearms dealer, sell them, or turn them into a law enforcement agency within 24 hours of being served with the order, and then file a receipt with the court that they have done so (CH-800).
The respondent may file a response to the petition (CH-120), but is not required to. If you represent the respondent, then the filing of a response is highly recommended, as some judges may make up their mind on the merits of the case solely on the moving and opposing papers. The CHRO calendar can be a busy one, with up to 30 or more matters scheduled for hearing on any given morning, so the court has a limited amount of time to deal with each case.
Burden of Proof:
The burden of proof to obtain an order prohibiting harassment is by “clear and convincing evidence”. C.C.P. sec. 527.6(h)(I).
As most civil practitioners are aware, “clear and convincing evidence” is a burden of proof hovering in between the burden of a “preponderance of the evidence” that is the burden in most civil actions, and the burden of “beyond a reasonable doubt” that is the burden of the prosecution in all criminal prosecutions.
Evidence at Hearing:
At the formal hearing of a CHRO action, the Evidence Code largely flies out the window, and the court can consider anything it deems relevant, including hearsay matters.
Per C.C.P. sec. 425.16(I), the court “shall” receive any relevant evidence. This has been interpreted by caselaw to expressly include hear say evidence. See Duronsletv Kamps (2012) 203 Cal.App.4th 717, 728-729. The statute also allows the court to make independent inquiry at the hearing.
As such, police reports and witness declarations (and without the witness being present in court) may come into evidence, if relevant.
After the hearing, the court shall issue an order for CHRO After Hearing, setting forth what relief, if any, is to be granted (CH-130).
Award of Attorney’s Fees:
Anecdotally, probably close to 85 percent of all petitioners and respondents who are involved in CHRO actions are in pro per.
If a party retains counsel, then the prevailing party in an action brought under C.C.P. sec. 425.16 may be awarded their costs attorney’s fees by the court. C.C.P. sec. 425.16(s). Such an award is discretionary and not mandatory.
If a party has retained counsel, it is strongly recommended that if attorney’s fees are being sought, that a declaration (MC-303) from the attorney be filed and served attesting to the attorney’s expertise and experience, their hourly rate, and an itemization of the hours incurred and/or estimated to be incurred at representing the client through a hearing.
The filing of the attorney’s fees declaration may make it difficult for the court to summarily deny an award of attorney’s fees out of hand. In this practitioner’s experience, the court is usually reluctant to award attorney’s fees to a prevailing party, especially if the prevailing party is a petitioner who may be culpable for some obnoxious or annoying behavior that contributed or led to the dispute, and conversely for the same reasons in the case of a prevailing respondent who may have not been the best neighbor on the block, even though imposition of a restraining order was not found to be justified.
Depending upon the judge, most neighbor disputes that go to a hearing date will first be ordered to go to mediation before the hearing actually takes place. The court has volunteer mediators who will be present on the day of the hearing to see if they can broker a peace deal. Usually they are not attorneys, however.
As with most civil actions, settlement may be more advisable than enduring a hearing and then leaving it up to the judge to decide.
From the petitioner’s standpoint, if he/she loses the hearing then the respondent may be emboldened to continue a past course of annoying behavior, only now without fear of judicial retribution. If the respondent has retained counsel, then there is also the prospect of an award of attorney’s fees being awarded against the petitioner.
From the respondent’s standpoint, if the matter proceeds to a hearing and the CHRO is granted, then the final order will be a matter of public record that might show up in a background search in
an employment, professional licensing, or credit context. Moreover, the respondent can say goodbye to their Second Amendment rights for as long as the order is effective. The respondent will also have to live with the risk that they may be accused of violating the order in the future, and which would then involve further legal proceedings and/or expense.
An alternative to encountering these reciprocal risk factors is for the parties to enter into a written mutual release, without acknowledging any liability or fault, and to the effect that neither party shall annoy, communicate with, harass, bother, etc. the other for an indefinite period of time.
Depending on the circumstances and what the parties can agree to, a mutual release can also provide for each side to bear their own attorney’s fees and costs to date; a waiver of any monetary damage claims incurred to date against the other; confidentiality of the settlement, unless there are court proceedings initiated thereafter that are relevant to a breach of the agreement; a provision for an award of attorney’s fees as a matter of right to the prevailing party in any subsequent legal action relating to a breach of the agreement and/or a future CHRO action; and provisions that the mutual non-harassment prohibitions extend to the parties’ respective family members and/or friends.
With such a mutual release in place, both parties save face and can be spared the uncertainties of an evidentiary hearing, and the CHRO action can then be dismissed with or without prejudice.
The CHRO Hearing:
Again, the typical morning calendar will have 20-30 different cases set for hearing on any given day. Some of the cases will be resolved by mediated settlement, some will be dismissed for any given reason, and some will be continued for any given reason. The court will ask for time estimates on those matters that aren’t dismissed or continued, and those matters will have to be heard.
Depending on the court’s calendar and the time estimates, this may mean that any given case will have to be continued into the afternoon or continued to some future date.
A litigant should have his witnesses ready to go out in the hallway, and an attorney for an adverse party should always make a pre-hearing motion that the other parties’ witnesses be excluded from the courtroom prior to being called to testify.
An attorney for a litigant should have any documentary evidence pre-marked in expected sequence of admission, and with four copies on hand: a set of originals to go into evidence, a copy for the bench, a copy for the adverse party, and a copy for his/her self.
These matters should be viewed by counsel as a mini-trial wherein no discovery has been had other than what you can uncover on your own initiative, and where the burden of proof may be difficult to meet except in the most egregious cases.
Remedies for CHRO Actions Filed Without Probable Cause:
Most respondents who are faced with a CHRO action will dispute the characterization of the allegations and contend that they are the party who is actually enduring harassment. Many of these respondents will inquire of their legal counsel as to what their remedy is if they prevail in the action.
The answer is clear: there is no post-petition remedy. Similar to domestic violence restraining orders and small claims cases, CHRO actions are a summary procedure intended to provide a litigant with speedy and cost-efficient legal redress, and without having to face the prospect of malicious prosecution actions being filed against them thereafter if they fail to meet their burden of proof.
Accordingly, a malicious prosecution action will not lie for an unsuccessful petition under C.C.P. sec. 527.6. Kenne v. Stennis (2014) 230 Cal.App.4th 953, 970.
The law’s rationale is that harassment actions often stem from bitter and even irrational disputes, and which can make it difficult to distinguish between a malicious petition and one that is not, especially if it is a “dueling evidence” type of dispute, wherein one party testifies that the other did something bad and the adverse party denies having done so and there are no independent witnesses to weigh in on who is right.
Some people are prone to confrontation and/or of making an issue out of matters that are better left alone, and that is where problems between neighbors can develop. Many neighbor animosities snowball from a relatively trivial or minor incident, and then roll down to the courthouse.
Take pains to get along with your neighbors and counsel your clients to do likewise, as the trip to the courthouse may only make the problem worse.
Lawrence A. Strid is a sole practitioner in Laguna Hills, and whose practice concentrates on personal injury and general civil matters. He will have no problem with you being his neighbor so long as you don’t throw rowdy parties, you mow your lawn, and you remove your trash bins off the street after they are emptied on trash day.