California SLAPP Law

Restraining Orders and anti-SLAPP Motions

A very interesting issue arose in an anti-SLAPP matter that was brought to me. It involved a pretty specific situation that I have encountered only once before, but I think a research article is in order, to assist others who might find themselves in the same situation. The case arose from the client’s (Petitioner) obnoxious neighbor (Respondent). Suffice to say that Respondent had over the years engaged in annoying and threatening behavior, and our client had had enough. At the suggestion of the police, she filed an application for a Civil Harassment Restraining Order.

The Judicial Council has created forms to be used for this purpose, and like any form, it is at best a loosely fitting tool for the job. Petitioner filled out the forms the best she could, and attached a declaration to provide some additional facts she thought would be relevant for the court’s analysis.

In her declaration, she told the story of how she had repeatedly called the police in an effort to address Respondent’s harassment. She then said that in response to one of these calls to the police, Respondent had retaliated by making his own police report.

Oops. Reports to the police fall under the anti-SLAPP statute, so that afforded Respondent the opportunity to bring an anti-SLAPP motion, seeking to strike that “allegation.”

Petitioner didn’t know how to deal with the motion, and just showed up on the date set for the restraining order hearing. Thankfully, the court put off that determination so the anti-SLAPP motion could be heard, and set a briefing schedule. Petitioner then hired the Sultan of SLAPP, moi. 

Thomas v. Quintero

Respondent relied on the 2005 case of Thomas v. Quintero for the proposition that a petition filed for injunctive relief under California’s civil harassment statute is subject to a special motion to strike under the anti-SLAPP statute. But as the old saying goes, bad facts make bad law.

Sometimes special carve-outs are required, even though there might be some logical basis for the application of a statute. For example, the Supreme Court determined that a malicious prosecution action could not be based on an unsuccessful action in Small Claims Court. Based on that opinion, I created the first authority in California (Dorit v. Noe) determining that the same was true of attorney fee arbitrations. In both cases, the courts concluded that the intentionally informal nature of a small claims action or a fee arbitration would be thwarted if the results could then be used in support of a malicious prosecution action.

I think the same reasoning should apply to a request for a harassment restraining order. The forms are designed to be completed by laypeople, without the assistance of an attorney. It is crazy to think that such people will somehow know not to make any references to protected activities. And as explained below, an anti-SLAPP motion serves no purpose in the context of a restraining order application.

The court in Thomas ruled as it did because of the extreme facts. There, the Petitioner was upset by protests, and sought to enjoin those protests. To obtain a restraining order, a Petitioner must show a course of conduct, and in Thomas the entire course of conduct was the protests. The application therefore arose entirely from protected speech, and sought to enjoin protected speech. It was a 100% grade “A” SLAPP.

But can a Request for Civil Harassment Retraining Order really be a SLAPP?

The Civil Harassment Restraining Order process typically involves two steps, with an initial Temporary Restraining Order (“TRO”) followed by the hearing on the Restraining Order (“RO”). The Court of Appeal determined that the TRO aspect is not subject to an anti-SLAPP motion.

However, we conclude that no motion to strike can be filed in response to the TRO procedure provided for in the civil harassment statute. We emphasize that the purpose of a petition under section 527.6 is to obtain an injunction against wrongful conduct described in the statute. One does not file a petition simply to obtain the temporary, and interim, relief afforded by a TRO. In fact, if a TRO is granted, and the petition is thereafter dismissed without a hearing, the petitioner is not deemed to have prevailed for purposes of recovering costs and attorney fees. (Adler v. Vaicius.) Thus, a request for a TRO is simply an “application.” It does not qualify as a “cause of action” under the anti-SLAPP statute as it is not a “claim” (§ 425.16, subd. (b)(3)), “complaint” (§ 425.16, subd. (f)), “action” (§ 425.16, subd. (c)), “cross-complaint” or “petition” (§ 425.16, subd. (h)).

Nor is the procedure for obtaining a TRO akin to an adjudication of a disputed claim. So informal is the TRO proceeding that it does not even have to afford due process protections to the person against whom the TRO is directed. For example, no notice must be given to the person sought to be restrained before the TRO is issued. The TRO requires only that the applicant show “reasonable proof of harassment,” and then only by affidavit. On an ex parte showing of good cause, the court also has the discretion to issue a TRO that includes other named family or household members who reside with the applicant. (Schraer v. Berkeley Property Owners’ Assn.)

Therefore, we conclude that it would be unreasonable to interpret the anti-SLAPP statute’s special motion to strike remedy as applying to an application for a TRO under section 527.6. We turn, then, to the issue of whether the “cause of action” in the petition “aris[es] from any act of [Quintero] in furtherance of the [Quintero’s] right of petition or free speech under the United States or California Constitution in connection with a public issue.”

But after excluding the TRO part of the process, the court concluded that the RO part does indeed fall under the anti-SLAPP statute:

Certainly, the circumstances of this case share salient features with innumerable SLAPP suits of the past: “[W]hile SLAPP suits `masquerade as ordinary lawsuits’ the conceptual features which reveal them as SLAPP’s are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. (Wilcox v. Superior Court.)

Application of subdivision (e)(3) (“statement . . . made in a place open to the public or a public forum in connection with an issue of public interest”) turns on whether the acts of appellant in picketing and leafleting at respondent’s church were protected activities. There is no question that the events took place in a “place open to the public,” and respondent does not otherwise suggest.

In my opinion the court took an unnecessary and unwarranted detour to reach its conclusion. Let’s go back to the analysis of Baral v. Schnitt, and its progeny Bonni v. St. Joseph Health Sys., as to when a claim “arises from” protected speech.

In Baral, we addressed how a court should proceed when a plaintiff has pleaded what is sometimes loosely referred to as a ‘mixed cause of action’ – that is, a cause of action that rests on allegations of multiple acts, some of which constitute protected activity and some of which do not.  …

Plaintiffs do, of course, have considerable discretion in how to shape their pleadings, and as [Okorie v. Los Angeles Unified School Dist. ] observed, there is nothing to stop them from “deliberately or innocently” pleading causes of action that “allege both protected and unprotected activity.” (Id. at p. 590.) But at the end of the day, we do not believe the Legislature in enacting the anti-SLAPP statute intended to make the protections of the anti-SLAPP law turn on a plaintiff’s pleading choices.  …

To be clear, we do not suggest that every court that has continued to label its approach a gravamen test even after Baral has erred. Some courts have invoked the term not in the way Bonni suggests – to determine the essence or gist of a so-called mixed cause of action – but instead to determine whether particular acts alleged within the cause of action supply the elements of a claim. (See Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP [“The ‘gravamen is defined by the acts on which liability is based, not some philosophical thrust or legal essence of the cause of action”]. This approach is consistent with Baral, which reaffirmed that “[a]ssertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” Bonni v. St. Joseph Health Sys. (citing and quoting Baral v. Schnitt).

Thus, under the reasoning of the Supreme Court in both Baral and Bonni, the Court must determine whether the allegations upon which Respondent bases his Special Motion to Strike are offered as elements of the claim, or are “merely incidental or collateral.” In the latter case, they are not subject to section 425.16.

OK, so let’s next examine when a claim arises under the Civil Harassment statute, Code of Civil Procedure section 527.6. That section provides:

(a)(1) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section. …

(b) For purposes of this section, the following terms have the following meanings:

(1) “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, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”

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

(3) “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 that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.
…

(6) “Temporary restraining order” and “order after hearing” mean orders that include any of the following restraining orders, whether issued ex parte or after notice and hearing:

(A) An order enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner.

As set forth in section (b)(1) above, a restraining order must be based on a course of conduct, but constitutionally protected activity is excluded from that course of conduct. Therefore, by definition, Petitioner was not and could not have been offering constitutionally protected activity to satisfy an element of the claim, since such is not considered in determining whether the restraining order should issue.

Watch out for Bill.

By way of analogy, picture that Joe was seeking a restraining order against Bill out of fear for his life, and alleged that Bill stood in front of his home with a sign reading, “I am going to kill Joe.” Such an allegation would be appropriate to set the scene, and no one would seriously argue that the request is based on Joe’s exercise of his free speech.

In our case, Petitioner was setting the scene by alleging the escalating behavior of Respondent, to explain why she was fearful that Respondent might assault her. The pattern she sought to convey was one of escalation and retaliation. Again, a claim is subject to an anti-SLAPP motion to strike if its elements arise from protected activity. Courts deciding an anti-SLAPP motion thus must consider the claim’s elements, the actions alleged to establish those elements, and whether those actions are protected.

Two things can be true at the same time, and even protected speech can be evidence of Respondent’s animus. In the employment context, for example, “while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.” (Park v. Bd. of Trustees of California State Univ.)

Here, Petitioner was not basing her request on the fact that Respondent contacted the police, but that point was certainly salient as background to show Respondent’s pattern of retaliation and animus. And for the reasons discussed in the following section, proving malice by Respondent takes his conduct out of the protections afforded by Civil Code § 47.

Reports to law enforcement are no longer absolutely privileged.

No doubt Respondent’s counsel thought he had the motion in the bag, because reports to the police have always been absolutely protected. He cited myriad cases that so held. Under these authorities, it used to be the case that the second prong analysis was unnecessary, because there was no evidence the plaintiff could present to overcome the absolute immunity. But I pounced on the fact that Respondent’s counsel was relying on outdated law.

Every case opposing counsel cited was mooted by the fact that in 2021 the California Legislature foolishly amended Civil Code § 47 to add a new section:

(5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.

A report to the police is now only conditionally privileged, and can be overcome by a showing of malice. Malice is present where the report is made “with reckless disregard for the truth or falsity of the report.”

We defeated the anti-SLAPP motion, naturellement. In addition to all of the above, I argued that trying to shoehorn an anti-SLAPP motion into the context of a RO request was just too convoluted and illogical. As a simple example, the “allegation” that Respondent was seeking to strike was a paragraph in Plaintiff’s declaration. With a typical anti-SLAPP motion, would one ever go beyond the allegations of the complaint and seek to strike, say, something contained in an exhibit to the complaint?

Further, the motion accomplishes nothing. The anti-SLAPP statute seeks to quickly dispose of actions based on protected speech. The restraining order process is already very streamlined, and as shown by this matter, the overlay of an anti-SLAPP motion only serves to slow the process.

And finally, the anti-SLAPP statute protects free speech by mandating attorney fees to the successful movant. The restraining order statute also provides for attorney fees to a Respondent who defeats an RO application.

Happy ending, but a time-consuming process to get there.