Electronic Harassment and California Restraining Orders: A Guide for Contra Costa County Attorneys

The digital revolution has fundamentally reshaped human interaction. While the internet offers undeniable benefits for communication and social connection, it has also opened a Pandora’s box of novel harassment tactics. Today, unwanted advances and malicious behavior can transcend physical boundaries, manifesting as a barrage of harassing emails, defamatory social media posts, and even online impersonation. These acts of electronic harassment can have profound consequences for victims, causing emotional distress, reputational damage, and a pervasive sense of insecurity.

For attorneys practicing in Contra Costa County, understanding the legal landscape of electronic harassment and civil restraining orders is paramount.

Statutory Framework for Defining Harassment

California Code of Civil Procedure section 527.6 provides the statutory framework for civil harassment restraining orders. For electronic harassment to qualify under this section, it must fall within the legal definition of harassment. This definition encompasses a wide range of behaviors, including:

• Unwanted contact: This includes a continuous bombardment of emails, text messages, or social media messages despite clear requests to stop.

• Threats: Electronic communication can be used to convey threats of violence, property damage, or reputational harm. These threats, even if veiled, can cause significant distress and fear.

• Stalking: The Internet offers avenues for online stalking, including monitoring someone’s social media activity, tracking someone’s actions online, hacking into the target’s devices.

• Impersonation: Creating fake online profiles to pose as or to defame someone constitutes an actionable form of electronic harassment.

• Doxxing: This practice involves publicly revealing private or identifying information about someone online, often with the intent to cause them harm.

Similarly, Family Code section 6320 enjoins harassment and any of the above behavior by a respondent may support an application for a domestic violence restraining order.

Attorneys have ethical obligations to their clients, including competence in their representation. Electronic harassment often intersects with various areas of law, such as family law, criminal law and privacy law.  In today’s digital age, competence includes understanding the implications of electronic harassment and being able to effectively address it within the legal system.

Williams v. Superior Court: Clarifying Venue for Electronic Harassment

Williams v. Superior Court (2021) 71 Cal.App.5th 101 sheds light on venue for electronic harassment cases. Here, the plaintiff sought a civil harassment restraining order in Contra Costa County against a non-resident defendant who engaged in electronic harassment via phone calls and emails. Plaintiff alleged that the harassment caused emotional distress and physical ailments. The issue arose when the defendant challenged the venue, arguing that the filing should occur in her county of residence (Alameda County) and not in Contra Costa.

Plaintiff maintained that the conduct was an injury to person under the general venue statute in CCP section 395 and the Judicial Council forms (CH-100) provided a venue checkbox option that stated “I was harassed by the person [against whom an order is sought] in this county.” The trial court maintained that the Judicial Council knowingly provided the venue checkbox as it did because it thought its words conveyed a correct basis for venue.

The Court of Appeal clarified that venue is generally proper only in the county of the defendant’s residence and the right to have it tried elsewhere is an exception the Plaintiff must demonstrate – such as injury to person or personal property. The court held that the Plaintiff’s allegations that the electronic harassment caused physical ailments was not a claim for “injury to person” because the claim of physical injury had no definite situs – depending where he read the offensive emails or listened to the harassing phone calls, he could have claimed any county is where the injury occurred, which is an insufficient basis to establish situs of injury to person. The Defendant was entitled to move her matter to Alameda County.

Hogue v. Hogue:
Expanding Jurisdiction for Electronic Harassment under the DVPA

Comparatively, Hogue v. Hogue (2017) 16 Cal App 5th 833, a domestic violence restraining order matter, established a crucial precedent for victims of electronic harassment that disturbs their peace as defined by the Domestic Violence Prevention Act (“DVPA”). Hogue involved a woman (Plaintiff) who sought a restraining order against her estranged husband (Defendant) residing in Georgia. The harassment centered around acts of physical abuse that occurred in Georgia and a video of a simulated suicide sent to Plaintiff after she moved back to California. The Defendant challenged the California court’s jurisdiction due to his non-residency.

The Court of Appeal had to assess whether Defendant’s conduct, occurring outside of California, caused effects within California that were of an exceptional nature subject to specific regulation in the state.  The Court of Appeal ultimately determined that the sheer existence of the Domestic Violence Prevention Act indicated that California found conduct related thereto subject to special regulation and, the act of purposefully sending a video of a mock suicide to Plaintiff in California, is indisputably conduct that would disturb Plaintiff’s peace of mind within the meaning of the DVPA. (See also In re: Marriage of Nadkarni (2009) 173 Cal.App.4th 1483.)

California has a strong interest in protecting its residents from abuses. Electronic communication sent from out of state to someone within the state, that would otherwise trigger a violation of the DVPA, would fall under jurisdictional purview of California. Where the effects of the harassment are felt in California and specifically regulated, the state has a legitimate interest in ensuring the safety of its residents.

However, note that such an extension of personal jurisdiction may not be provided to other types of restraining orders, and requires the court to engage in a fact-intensive analysis to determine whether the exercise of jurisdiction over Respondent would be constitutional. In ViaView v. Retzlaff (2016) 1 Cal.App.5th 198, 216, in an action by a website operator in California seeking a workplace violence restraining order against a critic of a website, the court found that evidence that the critic, who resided in Texas, posted defamatory threats on website and on social media platforms was not sufficient to create the minimum contacts necessary to establish specific personal jurisdiction. The rationale was that there was no evidence that threats were aimed at a California audience, that significant number of California residents saw them, or that social media platforms were targeted to California.

Practical Guidance for Attorneys Representing Victims of Electronic Harassment

Electronic harassment, although prevalent and persisting, has sparked nuanced rulings concerning jurisdiction and venue that must remain top of mind for those petitioning for and defending against restraining order requests. It is crucial for attorneys representing victims of electronic harassment seeking civil harassment restraining orders to equip themselves with the right tools and strategies. Here are some key considerations:

• Jurisdiction and Venue: Understanding the jurisdictional and venue rules and filing in the appropriate forum will preserve client, attorney, and judicial resources.

• Client Interview and Assessment: Meet with Client to gather information about the electronic harassment they experienced. Document the nature of the harassment, including specific incidents, manner of delivery, methods used by the perpetrator, and any resulting harm or emotional distress.

• Evidence Gathering: Work with client to collect evidence of the electronic harassment, including emails, text messages, social media posts, online comments and any other relevant communications. Ensure that the evidence is properly preserved and documented to maintain its integrity for use in court. Additionally, it may be necessary to issue subpoenas to social media platforms or other agencies to obtain user information or electronically stored evidence.

• Documentation and Timeline: Create a detailed timeline of the electronic harassment incidents, including dates, times and descriptions of each incident. Organize supporting documentation, such as screenshots or printed copies of harassing messages, to corroborate the timeline.

• Expert Witnesses: In some cases, it may be beneficial to consult with expert witnesses, such as forensic computer analysts to provide expertise on technical aspects of the electronic harassment.

• Legal Strategy: Develop a legal strategy tailored to the specific circumstances of the case, considering the client’s goals, available legal remedies, and potential challenges or defenses raised by the opposing party.

• Drafting Legal Documents: Prepare all necessary legal documents, including petitions for restraining orders, declarations, witness and exhibit lists and any other pleadings required to litigate the matter at hearing. Ensure that documents are properly served on the opposing party.

• Mediation: Explain to client the options available for resolving the matter without litigation, convey offers received by the opposing side, and remind client that they are under no obligation to accept any offer but that mediation is an option for early resolution of the matter.

• Court Proceedings: Represent client in court hearings related to placing the terms of settlement on the record or litigating the matter at trial, presenting evidence, making  legal arguments, and advocating for client’s rights.

• Follow-Up and Enforcement: After obtaining a court order or resolution in the case, ensure that Client understands their rights and responsibilities under the order. Ensure that the order is properly served in compliance with the court’s final orders, and explain to client remedies available if an order after hearing is violated.

Throughout the process, maintain clear communication with the client, keep them informed of developments in the case, and provide guidance and support as needed. Additionally, stay updated on changes in relevant laws or legal precedents that may impact the case. Your attention to the changing legal landscape can make or break your client’s matter.

MCLE Credit

Earn one hour of General MCLE credit by answering the questions on the Self-Study MCLE test, available here.  Send your answers, along with a check ($30 per credit hour for CCCBA members / $45 per credit hour for non-members), to the address on the test form. Certificates are dated as the day the form is received.