Stalking Laws Definitions Elements & Defenses

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The definition of stalking is that a defendant will be guilty of stalking if he or she engages in a pattern of conduct with the intent to follow, alarm, or harass the plaintiff. The result of the defendant’s stalking must be to cause the plaintiff to reasonably fear for his or her own safety or the safety of an immediate family member. [1]  The California statute for stalking is under Civil Code section 1708.7.

A person is liable for the tort of stalking when the plaintiff proves all of the following elements of the tort:

  • The defendant must have engaged in a pattern of conduct
  • The defendant must have an intent to follow, alarm, or harass the plaintiff.
  • The result of the stalking must be to cause a person or people reasonable fear for their safety.
  • The reasonable fear must be felt either by the plaintiff or their immediate family member.


The defendant must also have either violated a restraining order or made a credible threat intending to scare the plaintiff.


The plaintiff must show that he or she clearly demanded that the defendant cease his or her behavior, yet the defendant persisted in his or her pattern of conduct.

Element 1: Pattern of Conduct

“The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff. In order to establish this element, the plaintiff shall be required to support his or her allegations with independent corroborating evidence.” Civil Code section 1708.7(a)(1)

“Pattern of conduct means conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of pattern of conduct.” Civil Code §1808.7 (b)(1)

A pattern of conduct is comprised of a series of acts over some time.  The time may be short or long, and it must show that the defendant had a purpose to continue his conduct over time.  Constitutionally protected activities are not included within the meaning of “pattern of conduct.” [2]

To establish a pattern of conduct, the plaintiff must support his or her allegations with independent credible threat or corroborating evidence. [3]

Element 2: Defendant Intended to Follow, Alarm, or Harass

“Harass means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.”  Civil Code §1808.7 (b)(4)


“The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member and, on at least one occasion, the plaintiff clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct.” Civil Code section (a)(3)(A)

Credit Threat Definition

Credible threat means a verbal or written threat, including that communicated by means of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent and apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.” Civil Code §1708 (b)(2)


Note: The stalking statute defines a “credible threat” as a verbal or written threat or a threat implied by a pattern of conduct made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety and made with the apparent ability to carry out the threat. Pen. Code, § 646.9, subd. (g). The mentally disordered offender statutory scheme and § 646.9 are harmonious. They contain similar language and were enacted to achieve the same underlying goal to protect the public.

Harass Definition

“Harass means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.” Civil Code section 1708.(b)(2)(4)

Element 3: Causation: 

The pattern of conduct must cause the plaintiff to fear for his or her own safety or that of his or her immediate family.

Elements 4: Reasonable Fear for Own Safety or Safety of Immediate Family

“As a result of that pattern of conduct, the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member. For purposes of this paragraph, immediate family means a spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides, or, within the six months preceding any portion of the pattern of conduct, regularly resided, in the plaintiff s household.” Civil Code section 1708.7(a)(2)


The immediate family includes[4]

  • Spouse
  • Parents
  • Children
  • Blood relatives
  • Roommates who regularly reside with the plaintiff
  • Roommates who have resided with the plaintiff within the 6 months preceding the battery [5]


Restraining Order Violation

The plaintiff must prove these elements to show that the defendant violated a restraining order. [6]

  • Credible threat (aka: course of conduct”)
  • Demand to cease
  • Persistence


A “course of conduct” that seriously alarms, annoys, or harasses a person and serves no legitimate purpose is defined by Cal. Code Civ. Proc. § 527.6(b)(3) 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 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, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of course of conduct.

Stalking is an act of domestic violence. A defendant whose stalking offense involves implied threats of violence meets the criteria of a mentally disordered offender (MDO). An implied threat of force was one that invited resistance or escape with possible resulting injury. In ordering defendant’s commitment to the State Department of State Hospitals for treatment as an MDO following his conviction for stalking, the trial court reasonably inferred that his pattern of conduct in violating a restraining order the victim had against him was an implied threat that invited resistance or escape. Harassment restraining orders are issued on a showing that there is a course of conduct that would place a reasonable person in fear for his or her safety (Code Civ. Proc., § 527.6, subd. (b)(2)). Defendant violated the restraining order to achieve his “erotomanic delusion.” This would instill fear in any reasonable person repeatedly targeted by a severely mentally disordered man who held such a delusion. People v. Itehua, 227 Cal. App. 4th 356

Credible Threat, Demand to Cease, Persistence

What does the plaintiff have to show if the defendant violated a restraining order?

The plaintiff must prove that:

  • The defendant made a credible threat intending to place the plaintiff in reasonable fear;
  • the plaintiff must have clearly demanded that the defendant cease his behavior;
  • and the defendant must have persisted in his or her conduct. [7]


STALKING REMEDIES

“A person who commits the tort of stalking upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages pursuant to Section 3294.” Civil Code section 1708.7(c)

  • General Damages
  • Special Damages. “A person who commits the tort of stalking upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages pursuant to Section 3294.” Civil Code §1708.7(c) [9]
  • Punitive Damages
  • Equitable Relief, including Injunction


STATUTE OF LIMITATIONS TO STALKING

The statute of limitation for stalking is two years. “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” CCP §335.1

[1] Cal. Civ. Code §1708.7.

[2] Cal. Civ. Code §1708.7(b)(1).

[3] Cal. Civ. Code §1708.7(a)(1).

[4] Cal. Civ. Code §1708.7(a)(2).

[5] Cal. Civ. Code §1708.7(a)(2).

[6] §527.6. Cal. Civ. Code §1708.7(a)(3)(B).

[7] Cal. Civ. Code §1708.7(b)(3).

[8] Cal. Civ. Code §1708.7.

[9] Cal. Civ. Code §1708.7.

[10] Cal. Civ. Code §1708.7

[11] Cal. Civ. Code §1708.7

Brad Nakase, Attorney


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