Martin v. Cruz - summarizes common understanding
and misunderstandings about 527.6

Not deciding whether the R/O of this case was abusive, the appeal court offers a summary of its understanding of 527.6.  It misunderstands some points as it misinterprets other cases, e.g., discovery has not been ruled out by any appellate decision but some decisions have remarked that the time limitations make discovery unlikely.  See the latter parts of the part IV Ex Parte section:


In closing, we note: "Section 527.6 was enacted to provide an expedited procedure for preventing `harassment' as defined. . . . The motivation for the statute was the experience of a young woman who was hounded by a male admirer who followed her, incessantly telephoned her, etc. . . . The statute was designed to provide a quick and simple procedure by which this type of wholly unjustifiable conduct, having no proper purpose, could be enjoined. The statute is limited to protecting only those who have suffered `substantial emotional distress' caused by conduct `which serves no legitimate purpose.' . . . Nothing in the statute indicates that it was intended to supplant normal injunctive procedures applicable to cases concerning issues other than `harassment' as statutorily defined. [¶] . . . [¶]

"Normal injunctive procedures allow time for research and investigation, pleading and other motions if necessary, discovery and preparation, etc., followed by opportunity for a full trial. . . . A temporary restraining order is initially available to stabilize a situation; a preliminary injunction can follow. Thereafter the matter can proceed to a full trial. If this matter had been handled according to normal injunctive procedures, plaintiff would have had ample time to develop evidence and prepare her case, and would not have had to defend her use of the easement on 24 hours' notice.

"Section 527.6, by contrast, provides a quick and truncated procedure. Offsetting the truncated nature of this procedure is the limited scope of the antiharassment orders which can legitimately follow. Section 527.6 provides for temporary restraining orders to handle immediate problems, followed quickly by a court hearing on a limited-scope antiharassment injunction — normally within 15 days, but in no case more than 22 days even if time is extended for good cause. . . . This expedited and summary proceeding is subject to several limitations designed to confine it to its proper scope. One such limitation is that any injunction which results cannot exceed three years in duration. Section 527.6 hence does not allow for final resolution of disputed rights. Another limitation is that `harassment' must be found by clear and convincing evidence before future conduct may be enjoined. . . . Another limitation is that a section 527.6 injunction may enjoin only `harassment' as defined. . . . Conduct which serves a legitimate purpose is outside the definition of `harassment' and cannot be enjoined pursuant to the summary procedures of section 527.6, even if such conduct might ultimately be enjoinable according to normal injunctive procedures after full development of the facts and law." (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 811-812, citations omitted.)

For similar reasons, a malicious prosecution action cannot be based on a section 527.6 order or injunction. "Section 527.6 is used where the victim has been stalked, threatened or otherwise seriously harassed. . . . There are many cases that exemplify the bitter and even irrational disputes that arise under section 527.6. [Citations.] In such highly charged circumstances a successful defendant may be inclined to counter with a civil action against the unsuccessful plaintiff. Yet . . . the background of bitterness would make it difficult to distinguish between a malicious petition and one that is not malicious. Further, . . . section 527.6 provides for attorney fees as sanctions for a frivolous petition. . . .

"It is true that by declining to extend the malicious prosecution tort to unsuccessful section 527.6 petitions we deprive an aggrieved defendant of a remedy for some of the harm he or she has suffered as a result of a malicious petition. However, the harm should be fairly minimal. Section 527.6 was passed to provide quick relief to harassment victims threatened with great or irreparable injury. . . . Like a small claims action, a section 527.6 petition is designed to be processed simply and expeditiously. A petition is filed, a hearing is held, normally within a few weeks, and an order is made or not made. . . . As a result of this expedited process a defendant is not usually likely to incur substantial legal fees. There is no risk of incarceration or financial ruin. At worst, he or she will simply be ordered to stop doing something. And to the extent the defendant has grievances of his or her own, section 527.6 expressly permits a cross-complaint. . . .

"Another important consideration is that a section 527.6 petition is not an ordinary civil action. . . . The statute provides for an action to be completed in a matter of weeks and incorporates an expectation that victims may often seek relief without the benefit of a lawyer. . . . Permitting a malicious prosecution claim to follow an unsuccessful section 527.6 petition would frustrate this streamlined procedure. The prudent plaintiff would seek legal advice before filing a petition. The risk of subsequent litigation might dissuade victims of serious harassment from seeking the remedy. Those that were not discouraged would be subject to the possibility of serious financial harm in the future. On balance, these concerns outweigh the concern that an aggrieved defendant might be deprived of the additional remedies a malicious prosecution action would provide in egregious situations.

". . . We are concerned with the sensitive and emotionally charged nature of a section 527.6 petition and the `unending roundelay of litigation' . . . that is likely to ensue if a successful defendant is able to counter with a malicious prosecution suit. Our conclusion is also based upon the fact that in enacting section 527.6 the Legislature has provided for speedy resolution of the initial suit and has authorized the imposition of sanctions for frivolous or delaying conduct within the first action." (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1572-1574,citations omitted.)

Finally, no discovery is permitted in a section 527.6 proceeding because the plaintiff's application is heard on an expedited basis. (See Thomas v. Quintero (2005) 126 Cal.App.4th 635, 650, fn. 11.)

Nothing contained herein is tendered as nor should it be considered as legal advice.  What is legal is not necessarily justice.  Almost all of reality is non-"published", ergo, what is legally affirmed is always a retarded misrepresentation of reality.   Use at your own risk!