What is the test for a restraining order to evict a person from their home?

The holding in Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513 is instructive. In that case, the court reversed a civil harassment restraining order evicting the defendant from his home. (Id. at pp. 1517-1519.) The plaintiffs were the brother and sister of the defendant who lived in their father's home following their father's death. (Id. at p. 1515.) The defendant had threatened to kill his sister and burn down the house. (Ibid.) The plaintiffs sought a civil harassment restraining order to enjoin the defendant from harassing the family and to remove him from their father's home. (Ibid.)

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The court found neither section 527.6 nor equity authorized the trial court to remove the defendant from his home. (Marquez-Luque v. Marquez, supra, 192 Cal.App.3d at p. 1517.) The court explained: "While defendant's threatening conduct may have, and did, justify a personal injunction prohibiting the conduct itself, removal from the home was not a remedy authorized by . . . section [527.6]." (Ibid.) The court also noted the plaintiffs did not live with the defendant and analogized the case to one where a person is removed from his or her home to prevent domestic violence. (Ibid.) In those circumstances, the court explained eviction "is authorized only when the person for whose protection the order is made was actually residing with the person at whom the order is directed." (Ibid.) In addition to "[t]he limited nature of the [section 527.6] statutory remedy," the court added "there was no evidence that [defendant's] mere presence in the home caused plaintiffs substantial emotional distress, or that his possession of the home was intended to harass or annoy plaintiffs." (Ibid.) The court accordingly held "the special proceeding under . . . section 527.6 to enjoin harassment did not invest the court with authority to evict defendant from his dwelling," and "the court [did not] have equitable jurisdiction to achieve that result." (Id. at p. 1519.)