In prior newsletter articles, we've discussed the protections available under California law to address harassment, how harassment is defined, who can be protected, and the risks to community associations that fail to properly respond to harassment complaints. One frequent source of frustration was the way the law dealt differently with petitions for relief depending on who was seeking protection. Only “natural persons” (individuals) could obtain civil harassment restraining orders. A board member or manager seeking such a restraining order against an individual was required to show a “course of conduct” of harassment by that individual. However, a community association could only obtain a “workplace violence restraining order” protecting certain named individuals (for example, managers, board members, employees, vendors) if it showed violence or “credible threats of violence” by the person from whom the protection was sought. In other words, the law required a community association to wait for a violent act (or a credible threat of violence) before it could seek judicial protection for its manager, board members, employees, or vendors. Otherwise, they were left to seek such protection from the courts on their own for harassment that didn't meet the threshold.
Fortunately, effective January 1, 2025, the law is changing because of Senate Bill 428, which was signed into law by Governor Newsom. SB 428 amends Section 527.8 of the Code of Civil Procedure to permit community associations to seek civil harassment restraining orders on behalf of their managers, board members, employees, and vendors in the absence of violence or credible threats of violence. Instead, the threshold required will be 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.” This change in the law provides community associations with considerably greater ability to address the sort of harassment, including non-violent abusive conduct, that seems increasingly common these days.
Of course, some unpleasant interactions “come with the territory” of governing, managing, and maintaining a community association. The course of conduct must serve no legitimate purpose to rise to the level of actionable harassment. Under the statute as amended, “course of conduct” is defined as 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 employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email.”
Additionally, harassment petitions brought by community associations must be supported by “clear and convincing” evidence of all of the following: (1) that an employee has suffered harassment by the respondent; (2) that great or irreparable harm would result to an employee; (2) that the course of conduct at issue served no legitimate purpose; and (4) that the issuance of the order would not prohibit speech or other activities that are constitutionally or otherwise legally protected. The production of sufficient evidence could be hampered by the fact that Section 527.8 requires a community association provide the person to be protected (manager, board member, employee, vendor) with an opportunity to decline to be named in the temporary restraining order.
Nevertheless, as of January 1, 2025, community associations will have considerably expanded tools to address harassment that does not rise to the level of violence or credible threats of violence.
