An increasing number of board members are finding themselves in a position where they face unlawful harassment from their fellow homeowners/members. When this occurs, the law provides several safeguards to protect a board member from harassment by other members. A restraining order is the most common legal remedy available to protect board members and abate harassing conduct.
It is important for all board members to understand that restraining orders are available to protect themselves from harassment. Board members who are subject to harassment may seek a civil harassment restraining order pursuant to California Code of Civil Procedure §527.6. An association, however, cannot ordinarily seek a restraining order on behalf of an individual unless there is unlawful violence or a credible threat of violence directed against a board member in their capacity as a board member, in which case a workplace violence restraining order may be sought pursuant to California Code of Civil Procedure §527.8.
While civil harassment restraining orders and workplace violence restraining orders are similar, they are also notably different. Both statutes cover “unlawful violence,” a “credible threat of violence,” and “course of conduct,” but “harassment” is only addressed in the context of civil harassment restraining orders. Therefore, things that might rise to the level of harassment sufficient for an individual to seek a civil harassment restraining order would not necessarily rise to a level sufficient for an employer to seek a workplace violence restraining order on behalf of an employee. For example, a non-violent course of conduct with no credible threat of violence would not be a basis for seeking a workplace violence restraining order.
California Code of Civil Procedure §527.8 provides, in part, as follows: “Any employer, whose employee has 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, may seek a temporary restraining order and an order after hearing on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace….” The statute defines employees to include “members of boards of directors.” Therefore, pursuant to C.C.P. §527.8, an association may seek a workplace violence restraining order for a board member who has 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 while the board member is acting in his or her capacity as a board member.
The first step is to determine whether a board bember has suffered unlawful violence or a credible threat of violence by another member. C.C.P. 527.8(b) defines “credible threat of violence” as a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose. If the conduct does not rise to this level or if the conduct is not violent, a workplace violence restraining order would not be appropriate and would likely denied. Furthermore, the credible threat of violence can be either a single statement or a course of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking or making telephone calls or sending correspondence to the board member by any means. For example, if a member sends numerous emails to the board member over the course of several days with no legitimate purpose for doing so other than to place the board member in fear of his or her safety.
The second step is to determine whether the association can meet its burden of proof by establishing that a workplace violence restraining order is necessary to prevent further unlawful violence or credible threats of violence. In evaluating the level of threat, if the judge finds that the board member is in immediate danger of being harmed by the other member, he or she may issue an ex parte temporary restraining order (TRO) without hearing from all parties involved. Most judges are inclined to issue a TRO if enough facts demonstrate the need for an R.O. If the judge issues a TRO, the TRO is valid and in effect until the actual court hearing, whereby the judge will hear evidence from both sides to determine if the permanent R.O. should be issued.
After a hearing on the merits, if the judge finds that unlawful violence or a credible threat of violence has occurred, he or she may issue a permanent workplace R.O. for up to three (3) years. In this type of restraining order, the judge can issue an order telling the restrained person to stay away from the protected board member. The judge can also order the restrained person not to harass, stalk, assault, threaten, or communicate with the board member (either directly or indirectly) by mail, telephone, email, etc. (Code Civ. Proc. § 527.8.)
A workplace violence restraining order is an effective way to protect board members from violence and credible threats of violence directed against them in their capacity as board members. Often, the threat of a restraining order will be enough to keep board members safe, but if a board member needs more protection than that or feels that an individual threatens his or her safety or property, they should contact law enforcement immediately. Police reports can also be helpful when seeking restraining orders.
If your association is concerned about workplace violence, we encourage you to reach out to legal counsel. Legal counsel can help your association through the process of obtaining a workplace restraining order for your board members when appropriate.