Injunctive relief can be sought in California courts in two main forms: mandatory and prohibitory. Mandatory injunctions, similar to specific relief or specific performance in a contractual dispute, require that the party that is subject to an order to affirmatively engage in some type of behavior. Prohibitory injunctions require that one side or both sides to a dispute refrain from some type of act. The nature of the act and order will depend entirely on the circumstances of the individual case.
An injunction (temporary relief) can be granted in California if certain conditions are met. First, there must be no other adequate remedy available to the requesting party (money damages would not solve the problem that exists). There must also be a showing of “irreparable harm” if the injunction being requested is not granted. The third requirement is that there is a likelihood that the petitioner will win the underlying case upon which his or her request for an injunction is made. If the court feels the likelihood does not exist, the petitioner may still bring his or her underlying case (however, if the injunction is denied it will not be in effect during the time the case is being tried and decided). Finally, the balance of harm if an injunction is granted must be on the side of the petitioner, or the individual asking for the injunction.
In all California courts, there are four types of restraining orders that can be filed with the purpose of preventing harassment, violence, abuse, or a similar behavior. The type of restraining order being filed depends on the circumstances of each case, and the four common types of orders that meet this description are: civil harassment restraining orders, domestic violence restraining orders, workplace violence restraining orders, and elder abuse restraining orders.
The Parties to a Request
The individual requesting a restraining order or temporary relief in any matter is called the “petitioner,” and he or she is almost always the person seeking protection (the petitioner may seek protection for other people in addition to himself or herself). The individual from whom protection is sought is called the “respondent” in all restraining order cases. Parties sometimes each file requests for restraining orders and are therefore the petitioner in one matter and the respondent in another. Courts make an effort to combine cases and hear all relevant matters together when there are dueling filings requesting relief. Procedures exist, including asking on forms requesting an order, for determining whether there are cases related to another being filed.
Preliminary Restraining Orders & Injunctions
Preliminary restraining orders are granted in order to allow both sides and the court time to hear and decide the merits of the request for a permanent order and do not last indefinitely. Permanent orders can and often do last for years. Initial restraining orders may be granted without the respondent present if the petitioner alleges that he or she will suffer harm as a result of making the respondent aware of the pending request. Temporary restraining orders can be granted using evidence in a petition only. while permanent orders require the testimony of live witnesses, with some exceptions. California Code of Civil Procedure § 527 outlines the circumstances where a party may request a temporary restraining order without informing the respondent:
“(a) A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party.
(b) A temporary restraining order or a preliminary injunction, or both, may be granted in a class action, in which one or more of the parties sues or defends for the benefit of numerous parties upon the same grounds as in other actions, whether or not the class has been certified.
(c) No temporary restraining order shall be granted without notice to the opposing party, unless both of the following requirements are satisfied:
(1) It appears from facts shown by affidavit or by the verified complaint that great or irreparable injury will result to the applicant before the matter can be heard on notice…”
If the conditions described above are not met, the respondent must be notified of the request for a temporary order (a respondent must always be notified of a hearing where a permanent order can be issued). The opposing party (or attorney if applicable) must inform or make acceptable efforts to inform the respondent of the request for temporary relief absent a threat of harm, discussed above.
Appropriate Types of Relief
Courts frown upon the filing of restraining order cases alleging harassment, violence or abuse in order to gain an advantage in a civil dispute, whether or not the civil dispute is the subject of another case being heard in California Superior Court or any other court. The proper method of seeking temporary relief if a civil action is pending is to seek a temporary order or permanent order via motion in the existing matter. If no existing civil case is pending and the alleged wrongs do not include harassment, stalking, violence, elder abuse, financial abuse of an elderly person, abuse of a disabled person or the financial abuse of a disabled person, the proper course of action is to file a civil lawsuit or (or criminal complaint, when appropriate) and request the relief sought in the context of the newly filed civil matter.
The type of matter filed will determine the correct venue where the relief sought should be decided. Some courthouses do not handle civil lawsuits but will hear restraining order matters related to harassment and violence (and similar types of cases, discussed above). Other courts hear civil matters but do not have departments that handle civil harassment, elder abuse, domestic violence or workplace violence. It is always best to seek the advice of an experienced attorney, familiar with the rules concerning injunctive and temporary relief to determine which type of case should be filed.