Restraining Orders in a Nutshell
Concerned about the behavior of a board member towards other members during meetings? Has a homeowner been harassing your association’s management? In this article, we discuss the two types of restraining orders available in California for these situations and the process for obtaining one.
What is a CHRO?
A Civil Harassment Restraining Order (“CHRO”) provides protection to a person who has suffered harassment from someone who is not a close family member or of domestic relation. (Code of Civil Procedure 527.6). This means the person can be a director, volunteer, or other committee member. The conduct must cause a reasonable person to suffer substantial emotional distress and must also cause the victim to suffer substantial emotional distress.
This restraining order is filed in civil court, however, the evidentiary standard is quasi criminal in nature, meaning the petitioner must prove the harassment under the higher standard of clear and convincing evidence. (Code of Civil Procedure 527.6(i)). The general civil evidentiary standard is a preponderance of the evidence, which is anything that tips the scale to 51% probability whereas clear and convincing is closer to 75% probability. In other words, strong evidence will be required, and a “he said, she said” situation will not generally suffice.
What is a WVRO?
A Workplace Violence Restraining Order (“WVRO”) protects employees who have suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace. (Code of Civil Procedure 527.8). The association, as an employer, can apply for the WVRO to protect its employee(s) against an individual. This restraining order is also filed in civil court and requires the same heightened “clear and convincing” evidentiary standard.
Which restraining order should I apply for?
Whether you obtain a CHRO or WVRO, your situation will differ
Although both the restraining orders listed above prevent unwanted contact, they differ based on the relationship between the parties.
For example, the following situations may apply to a CHRO:
- An owner is harassing a director on the association’s board,
- A director on the board is harassing management.
Generally, an association may be able to hire its own legal counsel to file a CHRO on behalf of a director, volunteer (such as a committee member), management, or even an independent contractor. But you should consult your legal counsel to determine if this will be feasible in your particular circumstance.
The following situations may apply to a WVRO:
- A homeowner has threatened violence or been violent towards all board members,
- A board member has repeated outbursts and exhibited violent behaviors towards other board members and management personnel during meetings.
The main difference between a CHRO and the WVRO is that the association is named as the petitioner for a WVRO and the individual is named as a petitioner for a CHRO. Additionally, a CHRO has an attorney’s fee provision, meaning the petitioner could possibly recover their attorney’s fees for the CHRO while a WVRO does not contain any such provision.
In both cases, you will apply to the court for a restraining order, serve the other side (personal service is required), and attend a hearing to put on evidence and have the court determine whether a restraining order has been granted. While the case is pending, the judge may find that the facts support entering a temporary restraining order to protect the party until the hearing. When a temporary restraining order is in place, or once a permanent restraining order has been granted, the other side may face criminal charges if they violate the order. The police may also be called when an order is violated.
If you are experiencing threats of violence, or are concerned for your safety, call 911. If you would like more information on how to best protect your association, please contact us.